February 7, 2020

Contact:Eric W. Boyer, Esq.
Managing Partner
305.670.1101 Ext. 1023


Medical Malpractice Defense/Standard of Care – Failure to Test, Delayed Treatment, Failure to Diagnose

Scott C. Sankey

Scott C. Sankey

Robert J. Cousins

Robert J. Cousins

PALM BEACH COUNTY, Fla. ― QPWB trial attorneys, Robert J. Cousins and Scott C. Sankey, won a defense verdict in a medical malpractice case on behalf of a physician – a family doctor – allegedly charged with improperly evaluating patient’s symptoms.  Plaintiffs claimed the failure constituted medical malpractice; and that the Florida medical center where the physician practiced was vicariously liable for the physician’s actions. The defense argued the family doctor followed standard of care guidelines in patient’s medical examination.

The patient/plaintiff, claimed his effusion should have been diagnosed on April 8, 2015 when he visited the Florida urgent-care facility complaining of a chest cold and allergies as his chief symptoms. After examination, the family physician opined he suffered from an acute bronchitis, an upper respiratory infection and a cough. During examination plaintiff was asked twice if he had shortness of breath; medical notes indicate plaintiff did not complain of this symptom; and respiratory rate and oxygen saturation levels were normal. No chest X-rays were performed. Discharge instructions recommended he visit a pulmonologist and was provided a list of these specialists which plaintiff acknowledged receipt with his signature.

One week later, the plaintiff’s symptoms persisted.  He flew to Las Vegas to attend a horse show. Suffering shortness of breath, he got off the plane and after a stop at a hotel, visited a hospital where he was diagnosed with lung cancer and was hospitalized for two weeks.

Plaintiff’s counsel contended that the symptom warranted a chest X-ray, that an X-ray would have revealed plaintiff’s effusion, and that immediate treatment would have shortened the hospitalization to a day or two.

The defense’s expert internist opined that plaintiff’s April 8 workup was appropriate and within the standard of care. There was no need to perform a chest X-ray on that date; and, had the plaintiff been diagnosed with the effusion immediately, he would have needed to spend not a day or two, but three to four days in the hospital.

The defense argued that given the clinical picture of the plaintiff, there was no justification to order a chest X-ray; the defense maintained that the plaintiff’s clinical presentation at the Las Vegas hospital differed greatly from the one made to the family physician at the Florida medical center.

Defense counsel argued that plaintiff’s treating doctors agreed that the effusion had not become symptomatic until he got to Las Vegas.  On February 7, 2020 the jury agreed with a defense verdict. The family doctor’s examination was appropriate and within the standard of care.

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Robert J. Cousins specializes in civil trials. He is Board Certified in Civil Trial Law by the Florida Bar Board of Legal Specialization since 1994. His experience as a trial lawyer in Florida spans over 30 years. He is a partner at the firm’s Fort Lauderdale and West Palm Beach offices and practices in the areas of medical malpractice. He represents nursing homes, assisted living facilities and hospitals. His practice also encompasses the areas of legal malpractice, professional liability, products liability, insurance defense, general liability and the defense of clients in catastrophic injury and wrongful death cases. Mr. Cousins maintains an AV Preeminent Peer Review rating from Martindale-Hubbell; he is recognized in Florida Super Lawyers. He lectures on litigation topics and is author of a book chapter in “The Defense Speaks: A Litigation Manual for Defense Attorneys.” Mr. Cousins served on the Ethics Committee of the Florida Bar. He received his law degree from Nova Southeastern University Shepard Broad Law Center.


Scott C. Sankey is a partner in the firm’s Fort Lauderdale office.  He is a trial attorney focusing in the areas of civil litigation and wrongful death defenses including medical malpractice, products liability, automotive defense, insurance coverage disputes, professional negligence and contract claims. He received his law degree from the University of Miami School of Law. Mr. Sankey is licensed to practice law in Florida and Wisconsin.


About QPWB

Quintairos, Prieto, Wood & Boyer, P.A., is the largest minority and women owned law firm in the nation with 24 offices in the U.S. and abroad across a spectrum of industries in over 40 areas of practice. Our lawyers provide representation in litigation, business, real estate and governmental law.

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