Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT BETTY JEAN HAYNES, ) ) Appellant, ) ) v. ) Case No. 2D18-4649 ) WILLIAM BLACKSHEAR, JR., M.D., ) and WILLIAM M. BLACKSHEAR, JR., ) M.D., P.A., ) ) Appellees. ) ) Opinion filed July 17, 2020. Appeal from the Circuit Court for Pinellas County; Amy Williams, Judge. Kristin A. Norse and Stuart C. Markman of Kynes, Markman & Felman, P.A., Tampa, for Appellant. Jason M. Azzarone and Louis J. La Cava of La Cava & Jacobson, P.A., Tampa, for Appellees. VILLANTI, Judge. In this medical malpractice action, Betty Jean Haynes seeks review of the final judgment entered in favor of William Blackshear, Jr., M.D., and William M. Blackshear, Jr., M.D., P.A. (collectively "Blackshear"), following a jury verdict of no liability. Haynes contends that the trial court erred in instructing the jury and in preparing a verdict form because both the instructions and the verdict form conflated Haynes' two independent claims against Blackshear into one and thereby required the jury to find that Haynes had proved both claims in order to recover on either one. While our review of the record has determined that the jury instructions were proper, we agree with Haynes that the verdict form was legally insufficient to permit the jury to return a verdict on each of the independent claims before it. Therefore, we reverse and remand for a new trial. A detailed recitation of the facts of this case is unnecessary, but some background is required to understand the issue presented. Haynes was a patient of Dr. Blackshear, a vascular surgeon, and she suffered from high blood pressure. In an effort to determine the cause of Haynes' high blood pressure, Blackshear recommended a series of increasingly invasive diagnostic tests, one of which was a renal vein renin test.1 Haynes somewhat reluctantly underwent the renal vein renin test, a number of complications ensued, and Haynes ultimately was left with only one functioning kidney. As a result, Haynes filed a multi-count action against Blackshear. In her second amended complaint, Haynes alleged in count one that Blackshear provided negligent care and treatment by, among other things, performing 1In layman's terms and based on the testimony presented at trial, a renal vein renin test involves inserting catheters into the two renal veins and drawing blood samples from each vein both above and below the vena cava. The samples are then tested to measure the levels of renin in the blood, which may provide some information about how the kidneys are functioning and may be relevant to a determination of the possible effective treatments for that patient's high blood pressure. The test involves the use of contrast dye, which poses a risk of harm to the kidneys. In addition, the test carries a risk of clotting in the renal arteries. -2- unnecessary tests and procedures, negligently performing an unnecessary angioplasty, failing to advise Haynes of the known risks of the tests and procedures Blackshear recommended, and failing to properly identify and treat her blocked right renal artery, all of which resulted in injury and damages. In count four of the second amended complaint,2 Haynes alleged that Blackshear violated section 766.111, Florida Statutes (2009), by ordering and performing the unnecessary renal vein renin test. Section 766.111, entitled "Engaging in unnecessary diagnostic testing; penalties," provides: (1) No health care provider licensed pursuant to chapter 458, chapter 459, chapter 460, chapter 461, or chapter 466 shall order, procure, provide, or administer unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of a patient's condition. (2) A violation of this section shall be grounds for disciplinary action pursuant to s. 458.331, s. 459.015, s. 460.413, s. 461.013, or s. 466.028, as applicable. (3) Any person who prevails in a suit brought against a health care provider predicated upon a violation of this section shall recover reasonable attorney's fees and costs. (Emphasis added.) Since this statute was enacted in 1985, the only amendments have been to update the statutory references to the licensing provisions, and only three published cases have cited it. During pretrial proceedings, all parties understood that Haynes' claim under section 766.111 was based on Blackshear's decision to order and perform the allegedly unnecessary renal vein renin test, which claim was separate and distinct from the general medical negligence claim Haynes alleged in count one, which related primarily—but not exclusively—to the post-procedure management of the complications 2Counts two and three of the second amended complaint are not relevant to the issues in this appeal. -3- she suffered. All parties also understood that the only statutory basis for an award of attorney's fees in favor of Haynes would arise if she proved her claim under section 766.111; a jury verdict of general negligence would not entitle her to an award of attorney's fees and costs.3 The case proceeded to a jury trial, which was long and contentious. Both parties presented evidence on the issues of whether the procedures recommended by Blackshear were appropriate for Haynes and whether they had been performed in conformance with the applicable standard of care. After the close of evidence and during the charge conference, Blackshear raised the issue of whether section 766.111 created an independent cause of action. He argued that section 766.111 did not create an independent cause of action but instead merely created an entitlement to attorney's fees if Haynes proved that an unnecessary diagnostic test had been negligently performed and resulted in injury. Therefore, he contended that there should be only one jury instruction on negligence and only one question on the verdict form concerning whether Blackshear had been negligent. In contrast, Haynes argued that section 766.111 created an independent cause of action that did not require her to prove that Blackshear was negligent. Instead, she argued that she was required to prove only that Blackshear ordered, procured, 3Haynes served a proposal for settlement on Blackshear during the course of the litigation pursuant to section 768.79, Florida Statutes (2012), and she could have become entitled to an award of attorney's fees under that proposal depending on the jury's verdict. However, the general medical malpractice statutes do not provide for an award of attorney's fees and costs as a result of a judgment premised solely on medical negligence. -4- provided, or administered a diagnostic test that was not reasonably calculated to assist him in arriving at a diagnosis and treatment of Haynes and that she suffered injury or damages as a result of that unnecessary test.4 Therefore, Haynes argued that she should be entitled to have the jury address that claim separately, both because it was an independent cause of action and because of the possibility of the fee award, and she sought a jury instruction that would make it clear that the jury could find Blackshear either negligent in his general care and treatment of Haynes or liable for damages because he ordered, procured, provided, or administered the unnecessary renal vein renin test that resulted in injury, or, potentially, both. After much debate and discussion, the trial court agreed to instruct the jury, in essence, as follows: This is a medical negligence case in which Betty Jean Haynes asserts that William Blackshear, M.D., ordered, procured, or performed unnecessary diagnostic tests in violation of Florida Statute 766.111, and that he was negligent in providing care and treatment to Betty Haynes and that such negligence was a legal cause of injury and damage to Betty Jean Haynes. Defendants assert that at all times William Blackshear, M.D., provided reasonable care 4We recognize that the plain language of section 766.111 does not appear to require that any injury result from the unnecessary test in order to entitle a plaintiff to attorney's fees. However, in Dean v. Vazquez, 786 So. 2d 637, 639 (Fla. 4th DCA 2001), the Fourth District held that "section 766.111 does not establish a cause of action independent of the requirements of section 766.102," which requires proof of "death, injury or monetary loss arising out of any medical, dental, or surgical diagnosis, treatment, or care." (Quoting Silva v. Sw. Fla. Blood Bank, Inc., 601 So. 2d 1184, 1186 (Fla. 1992)). Hence, the Dean court rejected the contention that section 766.111 provides for the recovery of attorney's fees independent of proof of injury or damages. Dean, 786 So. 2d at 639. In the trial court here, both parties agreed that Haynes would need to prove that she suffered an injury or damages as a result of an unnecessary test in order to prevail on her claim under section 766.111. Because the issue of whether section 766.111 actually requires proof of injury as a prerequisite to recovery was neither raised in the trial court nor argued on appeal, we decline to address it here. However, we also note that Haynes offered such evidence in this case. -5- and treatment to Betty Jean Haynes and ordered, procured, and performed necessary diagnostic tests. (Emphasis added.) This instruction clearly sets forth two independent bases for liability: one if Blackshear ordered, procured, or performed an unnecessary diagnostic test that resulted in injury or damage to Haynes and another if Blackshear provided negligent care and treatment to Haynes that resulted in injury or damage. During that same charge conference, the parties and the trial court also agreed to use Haynes' proposed verdict form, which would have had the jury answer two questions: 1. Was there negligence on the part of Defendant, WILLIAM BLACKSHEAR, MD which was a legal cause of injury or damage to Plaintiff, BETTY JEAN HAYNES? YES ______ NO _______ 2. Did the Defendant, WILLIAM BLACKSHEAR, MD order unnecessary diagnostic tests, which were not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of BETTY JEAN HAYNES' medical condition, which were a legal cause of injury, and damage to Plaintiff, BETTY JEAN HAYNES? YES ______ NO _______ Using this form, the jury would have had the opportunity to find Blackshear liable on either claim independently of the other. In addition, a verdict returned on this form would have allowed the court to determine whether Haynes was entitled to an award of her attorney's fees under section 766.111. At that point, court ended for the day and the parties anticipated returning the next morning for the jury to be instructed, followed by closing arguments. -6- The next morning, however, before the jury was brought in, the trial court announced that it had read the Fourth District's decision in Dean v. Vazquez, 786 So. 2d 637 (Fla. 4th DCA 2001), and had determined that there was no need to have two questions on the verdict form. Instead, the trial court had prepared its own verdict form that included only one question: Was there negligence on the part of Defendant, WILLIAM BLACKSHEAR, MD and did WILLIAM BLACKSHEAR, MD order unnecessary diagnostic tests, which were not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of BETTY JEAN HAYNES' medical condition, which were a legal cause of injury or damage to Plaintiff, BETTY JEAN HAYNES? YES ______ NO _______ The verdict form then provided that if the answer to this question was no, the verdict was for Blackshear. Haynes objected to this verdict form, pointing out that, as written, it would require Haynes to prove both of her claims in order to prevail on either one, which was improper. Nevertheless, the trial court overruled Haynes' objection and used its own verdict form. The jury subsequently returned a verdict in favor of Blackshear, which Haynes has appealed. To address the issues raised by Haynes in this appeal, we must answer two questions: (1) does section 766.111 create an independent cause of action against a health care provider who orders, procures, provides, or administers an unnecessary diagnostic test; and (2) if so, did the trial court's instructions and verdict form in this case convey the proper information to the jury. Addressing first the question of whether section 766.111 creates an independent cause of action, we start with the language of the statute itself. See -7- W. Fla. Reg'l Med. Ctr. v. See, 79 So. 3d 1, 9 (Fla. 2012) ("To discern legislative intent, this Court looks first to the plain and obvious meaning of the statute's text, which a court may discern from a dictionary."). Section 766.111(1) prohibits a licensed health care provider from ordering, procuring, providing, or administering any diagnostic test that is "not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of a patient's condition." This language "codif[ies] the negligence standards governing the performance of unnecessary diagnostic procedures." Jackson v. United States, 469 F. Supp. 2d 1068, 1082 (M.D. Fla. 2006). In turn, section 766.111(3) permits a plaintiff who "prevails in a suit brought against a health care provider predicated upon a violation of this section" to recover reasonable attorney's fees and costs. (Emphasis added.) The reference to a plaintiff "who prevails in a suit" clearly contemplates that a patient can, in fact, bring an action against the health care provider who ordered, procured, provided, or administered the allegedly unnecessary test. Further, the phrase "predicated upon" means "founded on" or "based on." See Predicated, Merriam-Webster, www.merriam-webster.com/dictionary/predicated (last visited Apr. 12, 2020). Viewed in light of that definition, the language of section 766.111 clearly evinces an intent on the part of the legislature to permit a patient to bring an action against a health care provider based on a violation of the health care provider's statutory obligation not to order, procure, provide, or administer a diagnostic test that was not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition and was therefore unnecessary. Our analysis of this language as supporting an independent cause of action is in turn supported by another provision of the medical malpractice act—section -8- 766.102(4). That section provides that a health care provider's failure to order, perform, or administer diagnostic tests is not actionable as long as "the health care provider acted in good faith and with due regard for the prevailing professional standard of care." § 766.102(4). When considered in tandem with section 766.111, these two statutes establish that a health care provider who fails to order, perform, or administer a diagnostic test will not be liable for that failure as long as he or she acted in good faith; however, a health care provider who orders an unnecessary diagnostic test may be liable to the patient for injuries that result, as well as attorney's fees and costs. In short, a health care provider's good faith decision concerning diagnostic testing will be insulated while a decision to authorize an unnecessary diagnostic test will subject the health care provider to liability. In this appeal, as he did in the trial court, Blackshear argues against such an interpretation by contending that section 766.111 permits only disciplinary proceedings by a licensing agency rather than an independent cause of action by a patient. However, this contention is belied by subsection (3) of the statute, which clearly and unambiguously permits a plaintiff to bring a "suit" against a health care provider "predicated upon" a violation of the statute. To adopt Blackshear's position would render subsection (3) of the statute meaningless, an action we decline to take. See State v. Goode, 830 So. 2d 817, 824 (Fla. 2002) ("[A] basic rule of statutory construction provides that the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless."); Stratton v. Sarasota County, 983 So. 2d 51, 55 (Fla. 2d DCA 2008) ("This court will not interpret statutes so as to render portions of them meaningless when a reading that gives -9- meaning to all portions is possible."). Instead, we interpret the statute to provide for both types of proceedings: an action against the health care provider's license by the appropriate licensing agency and an independent action against the health care provider by the patient who underwent the unnecessary diagnostic test. This interpretation gives meaning to all subsections of the statute while doing violence to none. In the alternative, Blackshear argues that even if a plaintiff is entitled to seek an award of attorney's fees based on the authorization or performance of an unnecessary diagnostic test, the plaintiff must also prove malpractice on the part of the health care provider before the plaintiff can "prevail." Thus, he contends that Haynes must prove both that Blackshear committed malpractice and that he ordered, procured, performed, or administered an unnecessary test before Haynes can recover her attorney's fees. In making this argument, Blackshear relies on the Fourth District's decision in Dean, arguing that the Dean court held that a plaintiff could obtain an award of attorney's fees only if the plaintiff also proved that the health care provider was liable under the general medical malpractice standard. However, this argument misconstrues the Fourth District's decision in Dean. In Dean, Alfred Dean sued Luz Vazquez, M.D., and her practice after Dean developed a staph infection that ultimately resulted in the amputation of his left leg below the knee. 786 So. 2d at 639. Dean alleged that the infection resulted from the second part of an unnecessary EMG test that Vazquez had performed on him and that Vazquez was also negligent in the performance of the EMG and her treatment of Dean. - 10 - Id. The trial court instructed the jury with an instruction similar to that used by the trial court in this case: The issues for your determination on the negligence claim of Alfred Dean against Dr. Luz Vazquez and the Heart Institute of Port St. Lucie, Inc., are whether the defendants performed unnecessary diagnostic testing on Alfred Dean, and whether they were negligent in providing neurological serviced [sic] to Alfred Dean; and, if so, whether such negligence was a legal cause of injury and damage to Alfred Dean. Id. Dean alleged that this instruction was erroneous because section 766.111 permitted him to recover if the jury found that the diagnostic test was unnecessary, independent of any proof that he suffered an injury or damages as a result. Id. However, the Fourth District rejected that argument. It concluded that section 766.111 must be read in pari materia with the remainder of chapter 766, and it noted that section 766.102, which sets the standard for recovery in medical malpractice cases, requires proof of "death, injury or monetary loss arising out of any medical, dental, or surgical diagnosis, treatment, or care." Id. (quoting Silva v. Sw. Fla. Blood Bank, Inc., 601 So. 2d 1184, 1186 (Fla. 1992) (emphasis in original)). Hence, the Fourth District rejected Dean's argument that proof of damages was unnecessary in a case under section 766.111. Id. Instead, it held that a claim under section 766.111 required proof that the plaintiff suffered an injury as a result of the unnecessary diagnostic test. Id.; see also Jackson, 469 F. Supp. 2d at 1082 (concluding that section 766.111 "govern[s] the performance of unnecessary diagnostic procedures" and that "[a] claim for an unnecessary procedure or surgery is cognizable under Florida law"). As a thorough reading of Dean and Jackson makes clear, a claim under section 766.111 arising out of an unnecessary diagnostic test can stand on its own; a - 11 - plaintiff need not prove an independent act of medical negligence. Such a situation could arise when the health care provider orders an unnecessary diagnostic test, but the test is actually performed by a different health care provider who does so negligently. In that instance, while the plaintiff may have a malpractice claim against the health care provider who actually performed the test, the plaintiff may also have a claim under section 766.111 against the health care provider who ordered the unnecessary test. However, when the health care provider who orders the unnecessary test also performs that test and is negligent in doing so, the plaintiff may elect to bring both a general medical malpractice claim arising out of the negligent care and treatment and a separate claim arising out of the health care provider's decision to order an unnecessary diagnostic test. In either case, if the plaintiff proves that he or she suffered an injury as a result of the unnecessary test, the plaintiff may recover, in addition to those damages suffered as a result of that unnecessary test, his or her attorney's fees under section 766.111(3). Thus, the answer to the first question is yes—section 766.111 creates an independent cause of action that a patient may bring against a health care provider who violates the statutory standard by ordering, procuring, providing, or administering an unnecessary diagnostic test. Applying that law to the facts of this case, we note that Haynes alleged both a claim for general medical malpractice by Blackshear and a claim for a breach of section 766.111 predicated on Blackshear's decision to order the allegedly unnecessary renal vein renin test. She presented at least some evidence that she suffered an injury as a result of the allegedly unnecessary renal vein renin test, as well as injuries due to allegedly negligent treatment of her complications from that procedure. Because each - 12 - of these claims was cognizable independently of the other, Haynes was entitled to pursue each independently of the other, she was entitled to have the jury instructed on each claim, and she was entitled to a verdict form that allowed the jury to return a separate verdict on each independent claim. To conclude otherwise would vitiate Haynes' right to pursue both a medical malpractice claim and the statutory claim under section 766.111 independently of each other. Having determined that section 766.111 creates an independent cause of action, we must next determine whether the jury instructions given in this case properly instructed the jury concerning these two independent claims and whether the verdict form prepared by the trial court gave the jury the opportunity to find in Haynes' favor on either claim independently of the other. While the jury instructions properly explained the two independent claims, the verdict form prepared by the trial court did not permit the jury to return a verdict on each of Haynes' claims. This was error. When a plaintiff presents two separate and independent theories of liability, the plaintiff is entitled not only to jury instructions on those different theories but also to a verdict form that permits the jury to return a verdict on each of the independent claims. See LaTorre by & through LaTorre v. First Baptist Church of Ojus, Inc., 498 So. 2d 455, 456-57 (Fla. 3d DCA 1986) (concluding that the instructions given, when combined with the undifferentiated verdict form, could have misled the jury into believing that it had to find that the plaintiff had proved all of his claims—rather than just at least one—in order to prevail); cf. Phillips v. Parkside of Fountainbleau Condo. Ass'n, 634 So. 2d 1101, 1101-02 (Fla. 3d DCA 1994) (finding verdict form erroneous when it eliminated - 13 - "the jury's ability to make separate and distinct findings of liability regarding each of the two separate defendants"). As mentioned above, the trial court in this case instructed the jury using an instruction that paralleled the one given in the Dean case. That instruction told the jury that Haynes was asserting both a claim that Blackshear had "ordered, procured, or performed unnecessary diagnostic tests in violation of Florida Statute 766.111, and that he was negligent in providing care and treatment" to her and that Haynes was asserting that "such negligence was a legal cause of injury and damage to" her. The instruction also correctly informed the jury that Haynes had two independent claims, both of which required her to prove that she suffered an injury or damage. The verdict form, however, did not comport with either the law or the jury instructions. Instead, the verdict form conflated Haynes' two independent claims into one and gave the jury the option of answering only yes or no to a single question: Was there negligence on the part of Defendant, WILLIAM BLACKSHEAR, MD and did WILLIAM BLACKSHEAR, MD order unnecessary diagnostic tests, which were not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of BETTY JEAN HAYNES' medical condition, which were a legal cause of injury or damage to Plaintiff, BETTY JEAN HAYNES? Requiring the jury to answer either yes or no to this single question precluded it from finding that Haynes had proved her claim for general malpractice but not her claim for an unnecessary diagnostic test or vice versa. In essence, Haynes' two independent claims were improperly merged into one all-or-nothing verdict. By providing the jury with a verdict form that did not allow it to consider Haynes' claims independently, the - 14 - trial court prevented the jury from being able to return a verdict on each of Haynes' claims—an error that requires reversal and remand for a new trial. In sum, we hold that section 766.111 permits a patient to bring a claim against a health care provider who orders, procures, provides, or administers an unnecessary diagnostic test when the performance or administration of that test results in injury or damage to the patient. When such facts exist, the injured patient may bring an action against the health care provider under section 766.111 independently of any claim for any other medical malpractice. Haynes did so, and she was entitled to have the jury return a verdict on each claim independently of the other. By utilizing a verdict form that prevented the jury from considering Haynes' claims independently of each other, the trial court erred. Accordingly, we reverse the final judgment in favor of Blackshear and remand for a new trial. Reversed. KELLY and ROTHSTEIN-YOUAKIM, JJ., Concur. - 15 -