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St. Petersburg, Florida

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Bob Carroll
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Doctor Must Ask Right Questions Even If The Patient Speaks Spanish

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A breakdown in communications between an obstetrician and a Spanish-speaking pregnant mother may have resulted in injuries to a newborn child in the Florida case of TORRES v. SULLIVAN, 2D03-5227 (Fla.App. 2 Dist. 2005).

The standard of care provided to an expectant mother regarding delivery should not be lowered because she does not speak English. Nor should the expectant mother be expected to provide answers to questions that are not asked.

The Court opinion, which will be quoted from at length below, begins with a brief summary of the litigation on behalf of the injured baby: “Maria Torres sued Dr. Sullivan alleging he was negligent in
failing to deliver Luis by Cesarean section. The complaint alleged that Dr. Sullivan’s failure to obtain a complete history from Mrs. Torres caused him to deliver Luis vaginally and that Luis was injured as a result.”

A breakdown in communications between an obstetrician and a Spanish-speaking pregnant mother may have resulted in injuries to a newborn child in the Florida case of TORRES v. SULLIVAN, 2D03-5227 (Fla.App. 2 Dist. 2005).

The standard of care provided to an expectant mother regarding delivery should not be lowered because she does not speak English. Nor should the expectant mother be expected to provide answers to questions that are not asked.

The Court opinion, which will be quoted from at length below, begins with a brief summary of the litigation on behalf of the injured baby: “Maria Torres sued Dr. Sullivan alleging he was negligent in failing to deliver Luis by Cesarean section. The complaint alleged that Dr. Sullivan’s failure to obtain a complete history from Mrs. Torres caused him to deliver Luis vaginally and that Luis was injured as a result.”

“Luis was considered a large baby, particularly in light of Mrs. Torres’ small stature. This fact was known to Dr. Sullivan. Mrs. Torres had previously given birth vaginally to a large baby. This fact was also known to Dr. Sullivan. That delivery resulted in an injury to the baby that was similar to the injury Luis sustained, although eventually that child fully recovered. At the summary judgment hearing, Dr. Sullivan contended he was unaware of the injury to the prior baby when he made the decision to deliver Luis vaginally.”

“In an affidavit submitted in opposition to the motion for summary judgment, Dr. Schifrin [Plaintiff’s medical expert] stated, “It is my opinion that . . . it is the standard of care for an obstetrical physician in rendering obstetrical care and treatment to ask the mother, in this case Maria Torres, whether there was a problem with her [previous] baby . . . after her delivery.” He also stated that Dr. Sullivan “had an independent duty to ask Maria Torres whether there was a problem with the baby . . . after her prior delivery.”

“Dr. Sullivan argued that it was undisputed that he met the standard of care espoused by Dr. Schifrin.”

“What the record actually reflects, however, is that Dr. Sullivan never questioned Mrs. Torres. Mrs. Torres did not speak English. When she was admitted, a Spanish-speaking nurse was called in to translate questions on the admissions intake form and record Mrs. Torres’ answers. Regarding Mrs. Torres’ history, the question the nurse asked was whether Mrs. Torres experienced any complications with her prior deliveries, to which Mrs. Torres answered, “no.” At the summary judgment hearing, Dr. Sullivan’s counsel acknowledged that no one specifically asked Mrs. Torres if there were problems with the baby after the prior delivery — the question Dr. Schifrin testified was specifically required to meet the standard of care. Dr. Sullivan’s argument at the summary judgment hearing was therefore not that he had actually done that which Dr. Schifrin contended was required, but that all that was required was the single question the nurse posed to Mrs. Torres.”

“In granting the summary judgment, the trial court stated:

Wouldn’t you think that a mother in response then to a question from a doctor, was there a complication or a problem with the birth, that would be the first thing that the mother would remember and relate?

How different could the question have been asked other than the way the nurse asked it in this case?”

“Ultimately, the trial court concluded that to distinguish between the two questions — whether there were complications with the delivery versus whether there was a problem with the baby — was “to engage in linguistic convolutions and semantical [sic] argument.” The court explained that “if this doctor, this expert, [Dr. Schifrin] is saying, well, it’s not enough for you to say that it was just are there any complications with the delivery or complications with the birth, but you must ask other questions than that, then I’m not going to find that to be believable.”

“Dr. Schifrin clearly testified, in his deposition and via affidavit, that the standard of care required Dr. Sullivan to personally ensure that Mrs. Torres answered two questions. The undisputed evidence established that she was asked only one.”

“In ruling on a motion for summary judgment, it is improper for the trial court to weigh the expert’s testimony. See Wolford v. Ostenbridge, 861 So. 2d 455, 457 (Fla. 2d DCA 2003). It is the jury that will have to decide whether to accept or reject Dr. Schifrin’s opinion regarding what the standard of care required of Dr. Sullivan.”

“What was placed in issue by Dr. Sullivan’s motion for summary judgment was not whether Dr. Sullivan owed a duty to Mrs. Torres but whether he had done everything that was required of him by the standard of care. As explained below, what the standard of care requires is a question of fact, not a question of law.”

“While we have found no Florida case addressing this specific issue, cases from other jurisdictions have concluded that whether an expert’s testimony accurately reflects the standard of care applicable to the circumstances of the case is a question of fact to be resolved by the trier of fact.”

“…we conclude that the issue presented here regarding the standard of care was a disputed issue of fact that could not be resolved by the trial judge in a motion for summary judgment. Accordingly, it was error for the trial court to enter summary judgment in favor of Dr. Sullivan.”