What Can You Say in Closing About Not Bringing the Treating Doctors to Trial? New Florida Appellate Opinion

The Fourth District Florida Court of Appeals affirmed a defense verdict in a wrongful death medical malpractice case, finding that comments made by the defendant’s attorney during closing arguments were not improper.

This was just an awful case. Plaintiffs alleged that a man was killed because his physician misdiagnosed a cervical cord compression that lead to quadriplegia and, eventually, death.

The argument on appeal that seems to be of the most interest to Florida malpractice lawyers is whether the doctor’s lawyer made an “impermissible burden-shifting argument” in his closing by contending that the plaintiff failed to present “I would have done it differently” testimony from any of the decedent’s treating doctors. That’s not required, obviously, in Florida or anywhere else.

But, two appellate courts have now found that is not what the defense lawyer did. He did not allege that the law requires testimony from a treating doctor but just, “Hey, you didn’t bring one.” These Florida courts thought that was permissible and so do I.

Still, plaintiffs’ lawyer – Douglas F. Eaton at Eaton & Wolk – deserves some love for their effort in this case. He seemed – from the outside looking in – to make every possible argument.

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