Marder v. Mueller

Eleventh Circuit Court of Appeals

Marder v. Mueller
4th DCA
4/5/23, (Per Curiam Klingensmith, May, and Conner)
Topics: Amendment of Pleadings; Medical Malpractice, Punitive Damages

Roberta Mueller had a lesion on her hand, and a doctor sent a sample for biopsy. That unnamed doctor determined that the biopsy showed that the lesion was a squamous cell carcinoma. After that Mueller Report, Roberta was referred to Dr. Marder, the defendant in this medical malpractice case.

Dr. Marder discussed various treatment options with Mueller, and she opted for radiation treatment even though Dr. Marder told her that radiation treatment would likely impact her ability to maintain her current lifestyle as an avid golfer.

Dr. Marder treated the lesion with twice-daily radiation with some of the treatments being only 45 minutes apart.

At some point, Mueller became convinced that her lesion was never cancerous to begin with. She sued Dr. Marder. (No word on why she did not sue the doctor who allegedly misdiagnosed the biopsy).

Mueller then sought to amend her complaint to assert a claim for punitive damages on two separate grounds. First, she asserted that Dr. Marder’s radiation treatments were too aggressive and done solely for financial gain. She asserted that the aggressive nature of the treatments were recognized as unacceptable in the medical community and they increased her risk for cancer in the future. She maintained that the Doctor’s actions amounted to more than mere negligence and instead constituted truly culpable behavior reflecting a conscious disregard for her life and safety. In her proffer for punitive damages, she also included three items of evidence she feels are relevant: 1) an attestation by her expert stating Doctor’s treatment fell “way outside” the standard of care; 2) Doctor’s deposition; and 3) documents related to two federal cases involving Doctor that included allegations of Medicare fraud and obstruction of a criminal health care investigation.

The trial court allowed the amendment, agreeing that there was a reasonable basis to conclude that the frequency and intensity of the treatments were basically quackery done for financial profit.

Dr. Marder appealed. Adding a claim of punitive damages is one of the increasing number of issues that can result in an interlocutory appeal.

On appeal, the DCA noted that a plaintiff must make a “reasonable showing” that there is a “reasonable basis” for punitive damages under section 768.72, Fla. Stat. The trier of fact must find “clear and convincing evidence” that the “defendant was personally guilty of intentional misconduct or gross negligence.”

“Intentional conduct” occurs when the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage would result, but they still pursued the course of conduct and the injury was indeed suffered.

“Gross negligence” occurs when the defendant was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.

Punitive damages are appropriate when a defendant engages in conduct that is fraudulent, malicious, deliberately violent or oppressive, or committed with such gross negligence as to indicate wanton disregard for the safety of others. The conduct must be so outrageous in character and extreme in degree that an average member of the community would feel resentment and exclaim, “Outrageous!”

Despite the fact that the doctor had been charged with Medicare fraud and obstruction of a criminal health care investigation and was irradiating people too aggressively and frequently without any medical basis for doing so because he wanted to charge extra for the aggressive treatments, the DCA held that the plaintiff did not make a “reasonable showing” of sufficiently outrageous conduct to survive the standard for pleading punitive damages. The DCA pointed to a lack of knowledge on the doctor’s part. The DCA held that the doctor’s plea to federal charges was “irrelevant to this case” and could not be used to show the doctor’s knowledge that what he was doing was wrong. The cases apparently involved overbilling for different procedures, not over-irradiating patients.

Mueller’s proffer included unrebutted evidence that Dr. Marder would receive the same Medicare or insurance reimbursements regardless of how many patients were in the radiation treatment protocol. In short, Patient did not provide a link between either Doctor’s billing practices with other patients or his interference in an unrelated criminal healthcare investigation with any improper motivation for prescribing radiation treatment for Patient. 101857_i.pdf

Terry P. Roberts
Director of Appellate Practice Fischer Redavid PLLC
PDF Version

Most Recent Cases
  • Johnson & Krej Leasing, Inc. Read More
  • H.S. v. Department of Children and Families Read More
  • Pimienta v. Rosenfeld Read More