Pedro v. Baber & The Question of Bodily Injury Fault

Initially, Baber was diagnosed with whiplash; however, after 4 months of continued pain, Barber consulted with an orthopedic surgeon who found she was suffering disc and muscular issues located in her lower back and neck. As a result of this diagnosis, Baber underwent orthopedic surgery. Unfortunately, this only provided temporary relief for her symptoms.

At trial, Joey James Pedro and his wife stated that they were not financially responsible for any surgery-related expenses. They reasoned that the surgery was not necessary; however, Ms. Baber and her surgeon testified that she only had the surgery to correct issues she sustained from the accident. The Pedros called 3 medical expert witnesses who claimed the plaintiff’s surgery was not necessary and “didn’t make any sense.” The defense went on to imply that the operating surgeon’s motivation was to charge large fees, claiming the surgeon purposefully rigged a discogram to justify the surgery.

When all testimonies and closing statements concluded, the trial judge permitted a request allowing the jury to receive special instructions. These instructions essentially stated:

1. A person whose negligence causes an accident or injury is responsible for any additional injuries caused by the medical negligence of a physician treating the original injuries (Stuart v. Hertz, 351 So. 2d 703 (Fla. 1977))
2. The question of treatment necessity is to be viewed from the Plaintiff’s perspective (Dungan v. Ford, 632 So. 2d 159 (Fla. 1^st DCA 1994))

The jury’s verdict was in favor of Baber and they found Mr. Pedro’s negligence to be the cause of Ms. Baber’s injuries. As a result, the Pedros were responsible for all medical costs, including those related to Ms. Baber’s surgery.

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Upon appeal, the Second District asserted its decision and stated that the questioning of the necessity of the surgery was brought about by the Pedros’ expert to begin with. The judge felt justified in his decision to allow the jury’s special instructions after the Pedros’ assailed the orthopedic surgeon’s credibility.

Other similar cases in which an appellate court ordered special jury instructions in an auto accident trial when the defendant attempted to shift the blame from themselves to an alleged negligent or greedy physician include:

• Tucker v. Korpita, 77 So. 3d 716 (Fla. 4^th DCA 2011)
• Nason v. Shafranski, 33 So. 3d 117 (Fla. 4^th DCA 2010)

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