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WEST PALM BEACH, Fla. — (Mealey’s) A state court jury Feb. 10 found that a physician and the concierge medical care plan with which he was associated are liable to the estate of a plan member who alleged that a blood clot in her leg went undiagnosed for almost a month, causing her to undergo an above-the-knee amputation and returned a verdict of more than $8.5 million in damages (Robert Beber, et al. v. Charles Metzger Jr., et al., No. 50-2009-CA-034380, Fla. 15th Jud. Cir., Palm Beach Co.).
In a suit filed by Robert Beber in the Florida 15th Judicial Circuit Court for Palm Beach County, the jury found that Dr. Charles E. Metzger was an agent of the concierge medical plan, MDVIP Inc., at the time he treated Beber’s wife, Joan, and that negligence on the part of Metzger was a legal cause of Joan Beber’s condition. Robert and Joan Beber paid $1,500 each annually for membership in the MDVIP plan, which provides 24-hour access to affiliated physicians organized in small practices that do not exceed 600 patients.
The verdict includes $1 million in non-economic damages against Metzger, $7 million in non-economic damages against MDVIP, $36,285.91 in medical and other expenses against Metzger and $500,000 in medical and other expenses against MDVIP. The jury also awarded Robert Beber $3,000 for loss of services. The jury also found that MDVIP had misrepresented its services to the Bebers and that the misrepresentation was a legal cause of Joan Beber’s injuries.
On Feb. 11, 2008, Joan Beber sought treatment for a sudden pain in her leg. A nurse in Metzger’s office prescribed pain medication and referred her to a back specialist with Metzger’s approval. Two days later, Beber was seen by the back specialist and advised to undergo an MRI. On Feb. 18, she underwent an MRI; on Feb. 20, she followed up with the back specialist and was given an epidural. Her records were then sent to Metzger. On Feb. 27, she was administered a second epidural by the back specialist, but the pain persisted. On March 3, Beber called Metzger’s office and was prescribed additional pain medication. She saw Metzger the following day, reporting that the pain had traveled down her leg to her foot. She was diagnosed with a pinched sciatic nerve and prescribed medications. On March 7, Beber saw a neurosurgeon, who diagnosed her condition as vascular in nature and sent her to the hospital, where a vascular surgeon removed the clot in an attempt to save the leg. A week later, it was determined that the leg could not be saved and Beber underwent an amputation.
Joan Beber filed suit against MDVIP and Metzger for negligence in failing to perform a differential diagnosis and discover her condition in time to save her leg. Robert Beber was substituted as plaintiff following Joan Beber’s death in September 2012.
In his closing argument, Jack Scarola of Searcy Law in West Palm Beach, representing Beber, told the jury that MDVIP breached its promise of “exceptional care” to Joan Beber. Quoting MDVIP’s marketing materials, Scarola said that MDVIP told Beber that it “identifies the country’s finest physicians and, through a rigorous selection process, chooses only doctors with excellent credentials, with excellent reputations and skill with bedside manner that you will come to appreciate. They sold their program based on representations that they were selecting the finest, most skillful physicians in the country. And that’s what Bob and Joan Beber thought.” However, Scarola said, what Joan Beber got was “marketing deception and valueless, illusory promises because MDVIP was doing nothing to fulfill its guarantees and to keep its promises.”
(Watch a video excerpt of Scarola’s closing argument.)
Citing the provider agreement between Metzger and MDVIP, Scarola told the jury that MDVIP required Metzger to comply with all laws, including the standard of care. “But they’ve done their very best to back away from that promise in this courtroom. They’ve done their very best to tell you that this doesn’t really mean anything. When they have the right to review medical records, when they have the contract right to enforce medical standards, they’re here to tell you, ‘We don’t involve ourselves in any way at all in the decision-making process on the part of doctors.’ Well, that’s right. They don’t. But they promised they would. That’s the promise that they made.”
In his closing argument, David O. Doyle of Gray Robinson in Orlando, Fla., representing MDVIP, reiterated his contention during opening statements that the suit is “a case of misplaced blame” as to both MDVIP and Metzger. “Today, 20 days later, I’m back to tell that that’s exactly what the evidence in this case has shown. The evidence in this case has shown that Mrs. Beber’s medical condition changed suddenly and unexpectedly. Her medical condition, which even, as we’ll go through, the plaintiff’s own experts said was reasonably diagnosed as an orthopedic problem and that the original diagnosis was reasonable, changed. Her condition changed from it being an orthopedic problem to being a vascular problem. That happened suddenly because of a clot that formed in her heart traveled from her heart to her left leg and began to block the blood flow to her leg. And at that point, there was a period of about four to six hours in which treatment could have been offered.” That did not happen, Doyle said, “until after Dr. Metzger had last seen Mrs. Beber.”
(Watch a video excerpt of Doyle’s closing argument.)
MDVIP kept its promises to Beber, Doyle told the jury. “MDVIP gave her the exceptional doctor she knew, Dr. Metzger, gave her the exceptional care that was promised — the same next-day appointments, annual physicals, comprehensive wellness planning. And, finally, MDVIP explained what the exceptional results were — that it was not a guarantee of any specific result to any specific patient.”
Doyle urged the jury to evaluate Metzger’s actions in terms of “what Dr. Metzger knew and when he knew it, not with the lens of hindsight or retrospect. Dr. Metzger didn’t have the benefit of hindsight or retrospect.”
Judge Jack Cox presided.
In addition to Scarola, Beber is represented by Andrea Robinson and Karen Terry of Searcy Law in West Palm Beach. In addition to Doyle, MDVIP is represented by Jeffrey Keiner and Justin Marshall of Gray Robinson in Orlando, Fla.
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