ROBERT COUSINS and SCOTT SANKEY v. IVETTE DUPREY

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT ROBERT COUSINS and SCOTT SANKEY, Appellants, v. IVETTE DUPREY, Appellee. No. 4D19-3602 [July 21, 2021] Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; William W. Haury, Jr., Judge; L.T. Case No. CACE11- 10187(13). Dinah S. Stein of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, for appellants. Dennis Grossman of Law Office of Dennis Grossman, Miami, and Max R. Price of Law Office of Max R. Price, P.A., Miami, for appellee. MAY, J. Two attorneys appeal a sanctions order entered against them during a medical malpractice trial. They argue the trial court erred in sanctioning them and in determining the amount of the sanction. We agree and reverse. The underlying case arose from a two-count complaint for medical malpractice. The plaintiff suffered from Crohn’s disease. In 1990, she underwent surgery to remove certain diseased tissue. The defendant doctor first started treating the plaintiff nine years later. In 2007, the plaintiff’s gastroenterologist referred her to the doctor to surgically remove a stricture and reconnect the small bowel. In 2008, the doctor performed a laparoscopic small bowel resection. In the summer of 2009, the plaintiff suffered another flare-up of her Crohn’s disease. A colonoscopy revealed inflammation and a protrusion of the small intestine (“prolapsing”) at the site of the ileocolonic anastomosis. The prolapse was caused by the stricture at that location that the doctor was supposed to have removed in 2008. The plaintiff was referred to another physician for a second opinion. She underwent another surgery where the stricture at the ileocolonic anastomosis and two other strictures were removed and reconfigured. The plaintiff sued the doctor who performed the 2008 surgery and his professional association (“P.A.”). She alleged he was negligent in failing to “remove the culprit stricture” at “the site of [the ileocolonic] anastomosis” and failing to inform her “that he did not remove the stricture . . . .” Count two alleged vicarious liability against the doctor’s P.A. The doctor and his P.A. “specifically” denied the allegations and asserted as an affirmative defense that “the care and treatment rendered by [the defendants] were within the requisite standard of medical practice, and at no time was there any deviation from this standard.” Discovery The doctor submitted the following answer to an interrogatory propounded by the plaintiff. 6. Did you perform the surgery on the [p]laintiff, specifically treatment of the stricture at the ileocolonic anastomosis, during the surgery on or about January 14, 2009? If so, please describe specifically any and all evidence of this treatment. If not, why not? ANSWER: The [p]laintiff’s surgery was performed on January 14, 2008, not 2009. Yes, the stricture at the ileocolonic anastomosis was treated during that procedure. [The doctor] recalls treating that area. In addition, three (3) segments of small intestine were submitted for pathologic review. Attorney Cousins’ name appeared below the signature block but only attorney Sankey’s email address was listed. Attorney Sankey later testified that he “more likely than …

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