text:
    IN RE: STANDARD JURY INSTRUCTIONS IN CIVIL CASES and Standard Jury Instructions in Contract and Business Cases-Joint Report No. 18-01.
    No. SC18-1672
    Supreme Court of Florida.
    December 20, 2018
    Honorable Paul Lee Huey, Chair, Supreme Court Committee on Standard Jury Instructions in Contract and Business Cases, Tampa, Florida; Laura K. Whitmore, Chair, Tampa, Florida, Jeffrey Alan Cohen, Vice Chair and Subcommittee Chair, Miami, Florida, and Honorable Stephanie W. Ray, Member, Supreme Court Committee on Standard Jury Instructions in Civil Cases, Tallahassee, Florida; and Joshua E. Doyle, Executive Director, Mikalla Andies Davis and Heather Savage Telfer, Bar Liaisons, The Florida Bar, Tallahassee, Florida, for Petitioner
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Civil Cases and the Supreme Court Committee on Standard Jury Instructions in Contract and Business Cases (Committees) have submitted proposed new standard jury instructions and ask that the Court authorize the standard instructions for publication and use. We have jurisdiction. See art. V, 2(a), Fla. Const.

The Committees propose the following new instructions pertaining to Fiduciary Duty under section 451 of the respective standard jury instructions in civil cases and in contract and business cases: 451.1 (Introduction); 451.2 (Summary of Claims or Contentions); 451.3 (Greater Weight of the Evidence); 451.4 (Existence of Fiduciary Duty Disputed); 451.5 (Breach of Fiduciary Duty); 451.6 (Legal Cause); 451.7 (Preemptive Charges); 451.8 (Preliminary Issue - Vicarious Liability); 451.9 (Burden of Proof on Preliminary Issues); 451.10 (Issues on Main Claim); 451.11 (Burden of Proof on Main Claim); 451.12 (Defense Issues); and 451.13 (Burden of Proof on Defense Issues). The full set of numbered instructions was published in the January 1, 2018, issue of The Florida Bar News . No comments were received.

Having considered the Committees' joint report, the new jury instructions, as set forth in the appendix to this opinion, are hereby authorized for publication and use. New language is indicated by underlining. In authorizing the publication and use of these instructions, we express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any Notes on Use or Sources and Authorities associated with the instructions reflect only the opinion of the respective Committees and are not necessarily indicative of the views of this Court as to their correctness or applicability. The instructions as set forth in the appendix shall be effective when this opinion becomes final.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.

APPENDIX

SECTION 451 - FIDUCIARY DUTY

451.1 Introduction

451.2 Summary of Claims or Contentions

451.3 Greater Weight of the Evidence

451.4 Existence of Fiduciary Duty Disputed

451.5 Breach of Fiduciary Duty

451.6 Legal Cause

451.7 Preemptive Charges

451.8 Preliminary Issue - Vicarious Liability

451.9 Burden of Proof on Preliminary Issues

451.10 Issues on Main Claim

451.11 Burden of Proof on Main Claim

451.12 Defense Issues

451.13 Burden of Proof on Defense Issues 451.1 INTRODUCTION

Members of the jury, you have now heard and received all of the evidence in this case. I am now going to tell you about the rules of law that you must use in reaching your verdict. [You will recall at the beginning of the case I told you that if, at the end of the case I decided that different law applies, I would tell you so. These instructions are (slightly) different from what I gave you at the beginning and it is these rules of law that you must now follow.] When I finish telling you about the rules of law, the attorneys will present their final arguments and you will then retire to decide your verdict.

NOTES ON USE FOR 451.1

1. When instructing the jury before taking evidence, use instruction 202.1 in lieu of instruction 451.1. See Model Instruction No. 1. Instruction 451.1 is for instructing the jury after the evidence has been concluded. Use the bracketed language in instruction 451.1 when the final instructions are different from the instructions given at the beginning of the case. If the instructions at the end of the case are different from those given at the beginning of the case, the committee recommends that the court point out the differences with appropriate language in the final instructions, including an explanation for the difference, such as where the court has directed a verdict on an issue.

2. Florida Rule of Civil Procedure 1.470(b) authorizes instructing the jury during trial or before or after final argument. The timing of instructions is within the sound discretion of the trial judge, to be determined on a case-by-case basis, but the committee strongly recommends instructing the jury before final argument.

3. Each juror must be provided with a full set of jury instructions for use during their deliberations. Fla.R.Civ.P. 1.470(b). The trial judge may find it useful to provide these instructions to the jurors when the judge reads the instructions in open court so that jurors can read along with the judge, as the judge reads the instructions aloud.

451.2 SUMMARY OF CLAIMS OR CONTENTIONS

The claims [and defenses] in this case are as follows. (Claimant) claims that (defendant) owed a fiduciary duty to [him][her], that (defendant) failed to protect (claimant's) [financial interests] [property interests] [secrets] [confidences] [private information] [used such information to the detriment of claimant], and that this [failure] [use] caused harm to (claimant) .

(Defendant) denies that claim [and also claims that (describe any affirmative defenses) ].

The parties must prove all claims [and defenses] by the greater weight of the evidence. I will now define some of the terms you will use in deciding this case.

451.3 GREATER WEIGHT OF THE EVIDENCE

"Greater weight of the evidence" means the more persuasive and convincing force and effect of the entire evidence in the case.

NOTES ON USE FOR 451.3

1. Greater or lesser number of witnesses. The committee recommends that no instruction be given regarding the relationship (or lack of relationship) between the greater weight of the evidence and the greater or lesser number of witnesses.

2. Circumstantial evidence. The committee recommends that no instruction generally be given distinguishing circumstantial from direct evidence. See Nielsen v. City of Sarasota, 117 So.2d 731 (Fla. 1960).

451.4 EXISTENCE OF FIDUCIARY DUTY DISPUTED

(Claimant) claims that (defendant) owed a fiduciary duty to [him] [her] [it].

To prove a fiduciary duty existed, (claimant) must prove the following:

A relationship existed between (claimant) and (defendant) in which (claimant) put [his] [her] [its] trust in (defendant) to protect (claimant's) [financial or property interests] [secrets] [confidences] [private information] and (defendant) accepted that trust.

NOTES ON USE FOR 451.4

1. This instruction should not be read if the defendant admits the existence of a common law or statutory fiduciary duty. If the defendant admits the existence of such a duty, the preemptive charge at instruction 451.7a should be given instead.

2. These instructions address cases in which a breach of fiduciary duty creates a jury issue. But see King Mountain Condominium Ass'n v. Gundlach, 425 So.2d 569 (Fla. 4th DCA 1982) (holding that a plaintiff seeking purely equitable relief for breach of fiduciary duty is not entitled to a jury trial).

3. The committee recognizes that claims for breach of fiduciary duty may arise in different circumstances in addition to those listed above. See Doe v. Evans, 814 So.2d 370 (Fla. 2002).

SOURCES AND AUTHORITIES

1. The Florida Supreme Court has characterized a fiduciary relationship in the following manner:

The relation and duties involved need not be legal; they may be moral, social, domestic or personal. If a relation of trust and confidence exists between the parties (that is to say, where confidence is reposed by one party and trust accepted by the other, or where confidence has been acquired and abused), that is sufficient as a predicate for relief. The origin of the confidence is immaterial.

Doe v. Evans, 814 So.2d 370, 374 (Fla. 2002) (quoting Quinn v. Phipps, 93 Fla. 805, 113 So. 419, 421 (Fla. 1927)).

2. "A fiduciary relationship may be implied by law, and such relationships are `premised upon the specific factual situation surrounding the transaction and the relationship of the parties.'" Doe v. Evans, 814 So.2d 370, 374 (Fla. 2002) (quoting Capital Bank v. MVB, Inc., 644 So.2d 515, 518 (Fla. 3d DCA 1994)).

451.5 BREACH OF FIDUCIARY DUTY

(Claimant) claims that (defendant) breached a fiduciary duty [he] [she] [it] owed to (claimant) and was damaged as a result.

You must decide whether (defendant) breached a fiduciary duty to (claimant) and whether the breach was a legal cause of damages.

A breach of a fiduciary duty occurs when (defendant) failed to act [with the utmost good faith, fairness, and honesty] [with the highest and finest loyalty] and:

a. failed to protect (claimant's) financial or property interests; or

b. failed to protect (claimant's) [secrets] [confidences] [private information]; or

c. used such information to the detriment of (claimant)

and breach of the fiduciary duty is a legal cause of damage to (claimant).

NOTES ON USE FOR 451.5

1. These instructions have been prepared to cover many of the circumstances under which fiduciary duties have been held to arise. Courts have described the standard for a fiduciary's duty as being "the finest and highest loyalty," Donahue v. Davis, 68 So.2d 163 (Fla. 1953), and "utmost good faith, fairness and honesty," Gossett v. St. Paul Fire and Marine Insurance Co., 427 So.2d 386, 387 (Fla. 4th DCA 1983). The choice of the particular standard or standards will depend on the circumstances that give rise to the fiduciary duty. Other standards not listed in this instruction may apply.

2. A breach of fiduciary duty can be negligent or intentional. Palafrugell Holdings, Inc. v. Cassel, 825 So.2d 937, 939 n.1 (Fla. 3d DCA 2001).

3. As the facts dictate, appropriate defense instructions may be necessary.

4. In the appropriate case, the court should consider whether to give instructions on concurring or intervening cause.

451.6 LEGAL CAUSE

a. Legal cause generally:

Breach of a fiduciary duty is a legal cause of [loss] [injury] [or] [damage] if it directly and in natural and continuous sequence produces or contributes substantially to producing such [loss] [injury] [or] [damage], so that it can reasonably be said that, but for the breach of fiduciary duty, the [loss] [injury] [or] [damage] would not have occurred.

b. Concurring cause:

In order to be regarded as a legal cause of [loss] [injury] [or] [damage] a breach of the fiduciary duty need not be the only cause. A breach of a fiduciary duty may be a legal cause of [loss] [injury] [or] [damage] even though it operates in combination with [the act of another] [some natural cause] [or] [some other cause] if the breach of fiduciary duty contributes substantially to producing such [loss] [injury] [or] [damage].

c. Intervening cause:

Do not use the bracketed first sentence if this instruction is preceded by the instruction on concurring cause:*
*[In order to be regarded as a legal cause of [loss] [injury] [or] [damage], breach of fiduciary duty need not be its only cause.] Breach of fiduciary duty may also be a legal cause of [loss] [injury] [or] [damage] even though it operates in combination with [the act of another] [some natural cause] [or] [some other cause] occurring after the breach of fiduciary duty occurs if [such other cause was itself reasonably foreseeable and the breach of fiduciary duty contributes substantially to producing such [loss] [injury] [or] [damage]] [or] [the resulting [loss] [injury] [or] [damage] was a reasonably foreseeable consequence of the breach of fiduciary duty and the breach of fiduciary duty contributes substantially to producing it].

451.7 PREEMPTIVE CHARGES

The court has determined and now instructs you that:

a. Existence of a fiduciary duty:

A relationship existed between (claimant) and (defendant) in which (claimant) put [his] [her] [its] trust in (defendant) to protect (claimant's) [financial or property interests] [secrets] [confidences] [private information] and (defendant) accepted that trust.
(Skip to instructions on breach of fiduciary duty (451.5), legal cause (451.6), and damages (section 500).)

NOTES ON USE FOR 451.7a

1. This preemptive charge should be given only when the defendant admits or stipulates, or the court has ruled as matter of law, that a common law or statutory fiduciary duty exists between the claimant and the defendant. Otherwise, instruction 451.4 should be given.

2. The Committee takes no position on whether all the types of damages specified in section 500 are awardable for a breach of fiduciary duty claim.

b. Directed verdict on liability:

(Defendant) breached a fiduciary duty and that breach was a legal cause of [loss] [injury] [or] [damage] to (claimant). (Claimant) is therefore entitled to recover from (defendant) for the [loss] [injury] [or] [damage] as is shown by the greater weight of the evidence to have thus been caused by (defendant).
(Skip to instructions on damages (section 500).)

NOTE ON USE FOR 451.7b

This charge should be given only when the defendant admits or stipulates, or the court has ruled a matter of law, that the defendant has breached a fiduciary duty and that breach is a legal cause of damages to the plaintiff. Otherwise, instructions 451.5 and 451.6 should be given.

451.8 PRELIMINARY ISSUE - VICARIOUS LIABILITY

NOTE ON USE FOR 451.8

At this time, the Committee does not propose a standard instruction on preliminary issues in a breach of fiduciary duty case. A special instruction on vicarious liability may be considered. See Testa v. S. Escrow & Title, LLC, 36 So.3d 713, 715 (Fla. 1st DCA 2010) (noting the possibility of pleading a claim for vicarious liability for breach of fiduciary duty).

451.9 BURDEN OF PROOF ON PRELIMINARY ISSUES

If the greater weight of the evidence does not support (claimant's) claim on [this issue] [these issues], that (describe preliminary issue) , then your verdict on the claim of (claimant) * [because of the claimed breach of fiduciary duty by (name) ] should be for (defendant) .

If, however, the greater weight of the evidence supports (claimant's) claim on [this issue] [these issues], that (describe preliminary issue) , then you shall consider the other issues on (claimant's) claim.

NOTES ON USE FOR 451.9

1. Give instruction 451.9 if instructing the jury on any preliminary issues.

2. If there are multiple defendants, this instruction will have to be modified to account for the issues related to each defendant.

3. *There is no need to give that portion of the charge contained within brackets unless the claimant makes multiple claims involving other defendants. In such a case it is necessary to distinguish this claim from claims against other defendants.

451.10 ISSUES ON MAIN CLAIM

The [next] issues you must decide on (claimant's) claim against (defendant) are:

a. Breach of fiduciary duty:

whether (defendant) breached a fiduciary duty by (describe conduct in question), and, if so, whether that breach was a legal cause of [loss] [injury] [or] [damage] to (claimant, decedent, or person for whose injury claim is made).

b. Breach of fiduciary duty by multiple defendants:

whether (defendant) or (defendant) breached a fiduciary duty or whether both breached a fiduciary duty in (describe alleged breach of fiduciary duty) and, if so, whether that breach was a legal cause of [loss] [injury] [or] [damage] to (claimant, decedent, or person for whose injury claim is made).

NOTE ON USE FOR 451.10

"The elements of a claim for breach of fiduciary duty are: the existence of a fiduciary duty, and the breach of that duty such that it is the proximate cause of the plaintiff's damages." Gracey v. Eaker, 837 So.2d 348, 353 (Fla. 2002).

451.11 BURDEN OF PROOF ON MAIN CLAIM

If the greater weight of the evidence does not support [one or more of] (claimant's) claim[s], your verdict should be for (defendant) [on [that] [those] claim[s]].

[However, if the greater weight of the evidence supports [one or more of] (claimant's) claim[s], then your verdict should be for (claimant) and against (defendant) [on [that] [those] claim[s]].]

NOTES ON USE FOR 451.11

1. Use the first paragraph in all cases. If there is an affirmative defense to the claim that is the subject of the charge, do not use the bracketed paragraph; instead, use instruction 451.12.

2. The Committee takes no position on whether a comparative negligence instruction would be appropriate.

451.12 DEFENSE ISSUES

If, however, the greater weight of the evidence supports [ (claimant's) claim] [one or more of (claimant's) claims], then you shall consider the defense(s) raised by (defendant) .

On the [first]* defense, the issue(s) for you to decide [is] [are]:

[Insert any special instructions on defense issues]

NOTE ON USE FOR 451.12

At this time, the Committee does not propose standard instructions on any particular defenses that may be raised.

451.13 BURDEN OF PROOF ON DEFENSE ISSUES

If the greater weight of the evidence does not support (defendant's) defense[s] of (describe defense) and the greater weight of the evidence supports (claimant's) claim, then [your verdict should be for (claimant) in the total amount of [his] [her] damages].

NOTES ON USE FOR 451.13

1. Preemptive charges on defense issues. If a preemptive charge for claimant is appropriate on a defense issue, an instruction in the form of 451.7 should be given immediately following instruction 451.11. If a preemptive charge for defendant is required on some aspect of a defense, a preemptive charge announcing the ruling should be given immediately after framing the applicable defense issue.

2. Charges on issues raised by replies to affirmative defenses. Plaintiff bears the burden of proof on issues raised by any replies to affirmative defenses, and instruction 451.13 should be modified as appropriate for those issues.


source: Caselaw Access Project

author: LABARGA, J. POLSTON, J., dissenting.

license: Public Domain

text:
    Rolando P. RUIZ, etc., Petitioner, v. TENET HIALEAH HEALTHSYSTEM, INC., et al., Respondents.
    No. SC17-1562
    Supreme Court of Florida.
    December 20, 2018
    Jorge P. Gutierrez, Jr., of The Gutierrez Firm, Coral Gables, Florida; and Philip D. Parrish of Philip D. Parrish, P.A., Miami, Florida, for Petitioner
    Mark Hicks, Dinah Stein, Amanda Forti, and Erik P. Bartenhagen of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, Florida; and Jonathon P. Lynn of Chimpoulis, Hunter & Lynn, P.A., Plantation, Florida, for Respondents
    Daniel B. Rogers of Shook, Hardy & Bacon, LLP, Miami, Florida, for Amici Curiae American Medical Association and Florida Medical Association
   LABARGA, J.

Petitioner Rolando P. Ruiz seeks review of a decision of the Third District Court of Appeal which affirmed the entry of a directed verdict in favor of Respondent Arturo Lorenzo, M.D. Ruiz v. Tenet Hialeah Healthsys. , 224 So.3d 828 (Fla. 3d DCA 2017). Because we hold the Third District erred in that decision by equating the proximate cause of an injury with the primary cause of an injury, we quash the decision below and remand the case to the Third District.

Facts

In 2009, Ruiz's late wife, Maria Elena Espinosa, noticed a large mass had developed on the back of her head. Espinosa sought the advice of her primary care physician, who diagnosed the mass as a tumor and referred Espinosa to a neurosurgeon. The neurosurgeon did not order a biopsy of the tumor, but believed it to be an osteosarcoma. Imaging studies of the tumor showed it had invaded Espinosa's skull and could soon begin to press upon her brain. The neurosurgeon recommended immediate surgery to remove some of the tumor's mass-a process known as "debulking" the tumor-and render it more susceptible to other forms of treatment, such as radiation or chemotherapy.

Espinosa agreed to the surgery, which the neurosurgeon would personally perform with assistance from a colleague. The neurosurgeon asked Espinosa's primary care physician to order a battery of laboratory tests to ensure Espinosa was medically fit to undergo surgery. These tests included an electrocardiogram (EKG) and a urinalysis. The results of these tests were included in Espinosa's chart. The EKG readout in Espinosa's chart was a copy of a copy, and the image quality was correspondingly poor. It did, however, include an automated interpretation by the EKG machine itself which flagged the test result as abnormal, indicating Espinosa's heart may have been enlarged and that she may also have suffered two myocardial infarctions. Espinosa's urinalysis results occupied two pages of her chart. On the second page, the urinalysis indicated the abnormal presence of protein in Espinosa's urine, a condition known as proteinuria. Despite these abnormal test results, Espinosa's primary care physician cleared her for surgery, which was scheduled to be performed at 8:00 a.m. on May 13, 2009, at Hialeah Hospital.

That morning, Espinosa and Ruiz arrived at Hialeah Hospital around 6:00 a.m. Espinosa was taken to a separate room to be prepared for surgery while Ruiz remained in the waiting area. Dr. Lorenzo, an anesthesiologist, was also present at Hialeah Hospital that morning to assist with a different patient's procedure and was not assigned to Espinosa. Around 8:00 a.m., however, he learned Espinosa's assigned anesthesiologist, Dr. Guillermo Velasquez, was running late and that Espinosa's pre-anesthesia evaluation had not yet been performed. To maintain the pre-operation schedule and put Espinosa at her ease, Dr. Lorenzo decided to perform Espinosa's pre-anesthesia evaluation himself.

Dr. Lorenzo introduced himself to Espinosa and told her, "I am not going to be your anesthesiologist." He then asked Espinosa a series of questions about her medical history and present condition, recording the information she gave him on a "pre-anesthesia form/moderate sedation evaluation form" in Espinosa's chart. Dr. Lorenzo also reviewed some-but not all-of the test results in Espinosa's chart. He reviewed the EKG and, although the readout was blurry, Dr. Lorenzo later testified he was able to interpret the EKG with sufficient clarity to conclude Espinosa's heart was functioning normally. Dr. Lorenzo believed the abnormal result was caused by a malfunction of the EKG machine and not by any problem with Espinosa's heart. He also reviewed the first page of Espinosa's urinalysis results, but did not look at the second page of those results, where the abnormal proteinuria reading was displayed. During trial, Dr. Lorenzo admitted the proteinuria reading was something he "would want to know," but also stated it would not have affected his determination of whether it was safe for Espinosa to undergo anesthesia.

After Dr. Lorenzo had completed approximately half of the pre-anesthesia form, Dr. Velasquez arrived and took over from Dr. Lorenzo. Dr. Lorenzo then signed the pre-anesthesia form, introduced Dr. Velasquez to Espinosa, and told Dr. Velasquez, "There is nothing, no major medical problems whatsoever. You may want to look at the EKG." Dr. Lorenzo then left the room. Overall, he estimated he saw Espinosa for between three and five minutes, but stated he "wasn't looking at the clock." Dr. Lorenzo did not inform Espinosa's surgeons about the abnormal EKG, which he had reviewed, or about the urinalysis results reflecting abnormal proteinuria, which he had not. Dr. Velasquez later testified that after taking over from Dr. Lorenzo he began the pre-anesthesia evaluation over again from the beginning. Dr. Velasquez reviewed the EKG and the urinalysis results, including the proteinuria reading, but also did not inform Espinosa's surgeons of these abnormal test results. He also signed the pre-anesthesia form, and cleared Espinosa for surgery.

During the surgery, Espinosa lost a large amount of blood and suffered a precipitous drop in blood pressure, which her physicians were unable to reverse. A little over an hour into the surgery, she went into cardiac arrest and could not be resuscitated. An autopsy was performed, and a pathology test of the tumor tissue revealed that, rather than being an osteosarcoma, Espinosa's tumor was caused by a type of plasma cell cancer known as multiple myeloma.

Ruiz filed a medical malpractice action against each physician involved in Espinosa's treatment, including Dr. Lorenzo. In part, Ruiz alleged Espinosa's death was caused by the failure to correctly diagnose her condition as multiple myeloma. Ruiz argued multiple myeloma should only be treated through radiation or chemotherapy, and that surgery was not appropriate in Espinosa's case. Had Espinosa been correctly diagnosed at any point, Ruiz claimed, the surgery would have been canceled, and Espinosa would have survived. With regard to Dr. Lorenzo, Ruiz alleged he breached the standard of care by (1) not reviewing all the available data in Espinosa's chart, (2) not ordering a second EKG to reconcile the abnormal results of the first EKG, and (3) not reporting the abnormal lab results-some of which he did not review-to Espinosa's surgeons. Ruiz contended that, had Dr. Lorenzo adhered to the standard of care, either Dr. Lorenzo or the surgeons would have realized Espinosa was suffering from multiple myeloma and the surgery would have been canceled.

The trial court granted a directed verdict in favor of Dr. Lorenzo, holding that, even assuming Dr. Lorenzo was negligent in his care of Espinosa, he did nothing more than place her in a position to be injured by the independent actions of third parties-namely, the surgeons. The trial court analogized Dr. Lorenzo to "the cab driver who drove [Espinosa] to the hospital." Ruiz appealed, and the district court affirmed the trial court's ruling, concluding that no competent, substantial evidence in the record would allow a reasonable factfinder to conclude Dr. Lorenzo was the "primary cause" of Espinosa's death. Id. at 830. This review follows.

Analysis

A directed verdict can only be affirmed "where no proper view of the evidence could sustain a verdict in favor of the nonmoving party." Friedrich v. Fetterman & Assocs., P.A. , 137 So.3d 362, 365 (Fla. 2013) (quoting Owens v. Publix Supermkts., Inc. , 802 So.2d 315, 315 (Fla. 2001) ); see also Cox v. St. Joseph's Hosp. , 71 So.3d 795, 801 (Fla. 2011) (explaining "a directed verdict is appropriate in cases where the plaintiff has failed to provide evidence that the negligent act more likely than not caused the injury"). "The elements of a medical malpractice action are: (1) a duty by the physician, (2) a breach of that duty, and (3) causation." Saunders v. Dickens , 151 So.3d 434, 441 (Fla. 2014). "Florida follows the 'more likely than not' standard in proving causation, i.e., that the negligence 'probably caused' the plaintiff's injury." Cox , 71 So.3d at 799 (quoting St. Joseph's Hosp. v. Cox , 14 So.3d 1124, 1127 (Fla. 2d DCA 2009) ). For the limited purposes of Dr. Lorenzo's motion for directed verdict, the trial court assumed Dr. Lorenzo owed Espinosa a duty of care and that he breached that duty. The issue, then, is whether there was competent, substantial evidence in the record which would permit a reasonable factfinder to conclude that Dr. Lorenzo, more likely than not, proximately caused Espinosa's death. This case presents a pure question of law, which we review de novo. Keck v. Eminisor , 104 So.3d 359, 363 (Fla. 2012).

In determining whether a defendant's conduct proximately caused a plaintiff's injury, courts analyze "whether said injury, given actual causation, was a foreseeable consequence of the danger created by the defendant's negligent act or omission." Stahl v. Metro. Dade Cty. , 438 So.2d 14, 21 (Fla. 3d DCA 1983). Merely furnishing the occasion for a person to be injured by the supervening negligence of a third party is ordinarily not sufficient to establish proximate cause. Matthews v. Williford , 318 So.2d 480, 481 (Fla. 2d DCA 1975). Instead, the injured party must show that the alleged tortfeasor "substantially caused the specific injury that actually occurred." McCain v. Fla. Power Corp. , 593 So.2d 500, 502 (Fla. 1992). A "harm is 'proximate' in a legal sense if prudent human foresight would lead one to expect that similar harm is likely to be substantially caused by the specific act or omission in question." Id. at 503. In the absence of "a freakish and improbable chain of events" leading to injury, "the question of foreseeability as it relates to proximate causation generally must be left to the factfinder to resolve." Id. at 503-04 ; see also Gooding v. Univ. Hosp. Bldg. , 445 So.2d 1015, 1018 (Fla. 1984) (explaining that the defendant's conduct must be "a substantial factor in bringing about" the plaintiff's injury) (quoting Prosser, Law of Torts § 41 (4th ed. 1971) ).

As evidenced by the above, the law does not require an act to be the exclusive or even the primary cause of an injury in order for that act to be considered the proximate cause of the injury: rather, it need only be a substantial cause of the injury. For example, in Sardell v. Malanio , 202 So.2d 746, 746-47 (Fla. 1967), this Court held that a young boy who threw a football to his friend could be held to have proximately caused the injuries sustained by a passerby with whom his friend collided as he tried to catch the ball. The district court in Sardell had reasoned that Malanio, who threw the ball, "had no 'physical control over the pass catcher' and had no reason to expect the collision with the plaintiff," and therefore "held that the alleged negligence of the catcher effectively isolated the initial alleged negligence of the passer" such that Malanio's act of throwing the football could not be the proximate cause of the plaintiff's injuries. Id. at 747 (quoting Sardell v. Malanio , 189 So.2d 393, 394 (Fla. 3d DCA 1966) ). On that basis, the district court affirmed the trial court's dismissal of the complaint against Malanio. Id.

This Court quashed that decision, explaining that "[t]o preclude liability of the initial negligent actor, the alleged intervening cause must be efficient in the sense that it is independent of and not set in motion by the initial wrong." Id. The Court reasoned that the act which injured the plaintiff-that is, the attempt to catch the ball-"was merely a direct, natural and continuous sequel to the initial act of the passer Malanio." Id. Indeed, the catcher "would not have acted at all had it not been for the initial act of Malanio, who threw the ball and thereby initiated the series of events which in natural sequence allegedly produced the ultimate injury." Id. Thus, although the primary cause of the plaintiff's injury was the collision with the catcher, Malanio substantially contributed to causing the plaintiff's injury by throwing the football without due care.

The case now before us presents an analogous circumstance: Ruiz argues that Dr. Lorenzo's alleged failure to act with due care allowed Espinosa's surgery to occur. Had Dr. Lorenzo read and reported the abnormal results of Espinosa's pre-operative lab tests, Ruiz alleges, Espinosa's surgery would not have occurred and she would not have died during that surgery. Cf. Gooding , 445 So.2d at 1019 (holding that, in a wrongful death case arising out of alleged medical malpractice, the plaintiff must show the decedent would probably have survived had the care not been negligent). Dr. Lorenzo's conduct was not the primary cause of Espinosa's death, but he may nonetheless be liable for his part in it if his failure to read and report the abnormal test results substantially contributed to causing it.

Our medical malpractice jurisprudence makes clear that a physician may be the proximate cause of a patient's injury even if that physician is not the primary cause of that injury. In Saunders , we held that a treating physician "cannot insulate himself or herself from liability for negligence by presenting a subsequent treating physician who testifies that adequate care by the defendant physician would not have altered the subsequent care." 151 So.3d at 442. Therefore, we explained, "the issue of whether a treating physician acted in a reasonably prudent manner must be determined for each individual physician who is a defendant in a medical malpractice action." Id. This is inconsistent with the notion that only physicians who are the primary cause of a patient's injury may be the proximate cause of that injury. Indeed, our holding in Saunders is predicated on the principle that a physician who is not the primary cause of a patient's injury may nonetheless be liable for that injury: otherwise, there would be no reason to analyze the behavior of each physician individually.

By concluding that Dr. Lorenzo was entitled to a directed verdict on causation because he was not the primary cause of Espinosa's death, the Third District entered into conflict with our precedent. The record does not reflect that Espinosa's abnormal lab results caused her death. See Ruiz , 224 So.3d at 830 (noting "the record is devoid of competent, substantial evidence upon which to conclude that the blurry EKG or the abnormal protein level results caused Espinosa's death"). The record does reflect that "the primary cause of Espinosa's death was exsanguination." Id. The district court erred, however, when it held that in light of these facts, "[t]he trial court thus correctly granted Dr. Lorenzo's motion for directed verdict." Id. Our precedent makes clear that Dr. Lorenzo cannot prevent Ruiz from establishing proximate cause merely by showing his actions or omissions were not the primary cause of Espinosa's death. Instead, to foreclose liability on the grounds of causation, Dr. Lorenzo's acts or omissions must not have substantially contributed to Espinosa's death as part of a natural and continuous sequence of events which brought about that result. See McCain , 593 So.2d at 502-03 ; Gooding , 445 So.2d at 1018. To obtain a directed verdict on this basis, Dr. Lorenzo must show there is no competent, substantial evidence in the record which would permit a reasonable factfinder to reach such a conclusion at all. See Friedrich , 137 So.3d at 365 ; Cox , 71 So.3d at 801.

Accordingly, because the decision below is inconsistent with our precedent regarding the proximate causation standard, we quash Ruiz and remand to the Third District for further proceedings consistent with this opinion.

It is so ordered.

PARIENTE, LEWIS, and QUINCE, JJ., concur.

POLSTON, J., dissents with an opinion, in which CANADY, C.J., and LAWSON, J., concur.

POLSTON, J., dissenting.

Because the Third District's decision in Ruiz v. Tenet Hialeah Healthsystem, Inc. , 224 So.3d 828 (Fla. 3d DCA 2017), does not expressly and directly conflict with the decisions alleged by the Petitioner during jurisdictional briefing, this Court does not have the constitutional authority to review this case. Accordingly, I respectfully dissent.

For example, Ruiz does not conflict with Cox v. St. Josephs Hospital , 71 So.3d 795 (Fla. 2011), or Friedrich v. Fetterman & Assocs., P.A. , 137 So.3d 362 (Fla. 2013). In Cox , this Court concluded "that the district court impermissibly reweighed the evidence and substituted its own evaluation of the evidence in place of the jury." 71 So.3d at 800. At trial, conflicting evidence was presented, and the jury entered a verdict in favor of Cox, which was reversed on appeal by the Second District. Id. at 801. When quashing the Second District, this Court in Cox explained that "the jury was presented with conflicting testimony[,] ... which is a matter for the jury, not a matter for the appellate court to resolve as a matter of law." Id. Similarly, in Friedrich , this Court held that the Fourth District impermissibly reweighed conflicting expert testimony and "substituted its own evaluation of the evidence in place of that of the jury." 137 So.3d at 366. In contrast, in Ruiz the Third District explained that "[n]one of the expert witnesses testified that Dr. Lorenzo's evaluation of Espinosa fell below the standard of care such that any breach more likely than not caused Espinosa's death." 224 So.3d at 830. "In addition, the record is devoid of competent, substantial evidence upon which to conclude that the blurry EKG or the abnormal protein level results caused Espinosa's death." Id. In other words, there was no evidence in support of Ruiz's argument. Therefore, because in Ruiz (unlike in Cox and Friedrich ), there was no evidence to reweigh, there is no conflict.

Moreover, there is no conflict with Saunders v. Dickens , 151 So.3d 434 (Fla. 2014). In Saunders , this Court addressed statements made by Dr. Dickens' counsel that "because [the subsequent physician] would not have done anything differently had Dr. Dickens ordered a cervical MRI, any purported negligence by Dr. Dickens could not be the cause of Saunders's injuries." Id. at 442. This Court held that the statements were improper and that "testimony that a subsequent treating physician would not have treated the patient plaintiff differently had the defendant physician acted within the applicable standard of care is irrelevant and inadmissible and will not insulate a defendant physician from liability for his or her own negligence." Id. at 443. However, in Ruiz , the Third District did not address an argument that subsequent physicians would not have done anything differently. Therefore, because the legal issues are different, there is no conflict between Ruiz and Saunders .

There is also no conflict with Owens v. Publix Supermarkets, Inc. , 802 So.2d 315 (Fla. 2001). In Owens , this Court reviewed the entry of a directed verdict in a slip and fall case and whether the appearance of the hazardous condition, when there was no evidence as to how long the hazard had been on the floor, was enough to constitute constructive knowledge. 802 So.2d at 329. This Court held that "the condition of the banana raised a basis for establishing the store's constructive knowledge," precluding a directed verdict. Id. at 332. In Ruiz , the issue was whether there was competent, substantial evidence for a jury to find that Dr. Lorenzo's alleged negligence caused Espinosa's death. 224 So.3d at 830. Therefore, because Ruiz (unlike Owens ) did not address the issue of constructive knowledge in slip and fall cases, there is no conflict.

Additionally, there is no conflict with Gooding v. University Hospital Building, Inc. , 445 So.2d 1015 (Fla. 1984). In Gooding , this Court set forth the following "more likely than not standard:"

The plaintiff must show that the injury more likely than not resulted from the defendant's negligence in order to establish a jury question on proximate cause. In other words, the plaintiff must show that what was done or failed to be done probably would have affected the outcome.

445 So.2d at 1020. Because the plaintiff in Gooding failed to satisfy this test, this Court held that the hospital's motion for a directed verdict should have been granted. Id. More specifically, this Court in Gooding concluded that "the testimony established a no better than even chance for Mr. Gooding to survive, even had there been an immediate diagnosis of the aneurysm and emergency surgery[; t]herefore, a jury could not reasonably find that but for the negligent failure to properly diagnose and treat Mr. Gooding he would not have died." Id. at 1018. Similar to Gooding , the Third District in Ruiz applied the "more likely than not standard" and concluded "[t]here is no competent, substantial evidence at trial from which a jury could reasonably conclude that Dr. Lorenzo's behavior fell below the standard of care, or that any breach of the standard of care more likely than not caused Espinosa's death." Ruiz , 224 So.3d at 830. Therefore, because both Gooding and Ruiz applied the "more likely than not standard" and reached similar results, there is no conflict between the two cases.

Accordingly, because the cases alleged by the Petitioner do not conflict with Ruiz , this Court lacks jurisdiction to review this case. I respectfully dissent.

CANADY, C.J., and LAWSON, J., concur.

      We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

      We note that the trial court granted Dr. Lorenzo's motion for directed verdict on proximate cause grounds and assumed, for the limited purpose of ruling on that motion, that Dr. Lorenzo breached the standard of care. The issue before the Court is whether, even if the other elements of Ruiz's claim were satisfied, Ruiz failed to present competent, substantial evidence that Dr. Lorenzo proximately caused Espinosa's death. Accordingly, any issue regarding the scope of Dr. Lorenzo's duty to Espinosa is beyond the scope of our review, and we express no opinion with regard to that issue.