# Brock v. United States

> District Court, M.D. Florida · January 25, 2024

URL: https://www.frixlaw.com/law-library/cases/10115098

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** January 25, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

JOY BROCK, as Personal Representative of
the Estate of Richard Brock, deceased,
Plaintiff,
“ Case No. 3:21-cv-679-JAR-IBT
UNITED STATES OF AMERICA,
Defendant.

OPINION AND ORDER
Jane A. Restani, Judge’:
Plaintiff, Joy Brock, as personal representative of the Estate of Richard Brock, deceased,
brought this medical malpractice action against the United States of America under the Federal
Tort Claims Act, 28 U.S.C. § 2671, et seg. Mrs. Brock claims that her husband Richard Brock
died as a result of negligence on the part of medical staff at Naval Hospital Jacksonville (“NHJ”)
in Jacksonville, Florida, where he was a patient at the Family Practice Clinic. Compl. at { 25, ECF
No. | (July, 9, 2021) (“Compl.”). Mrs. Brock contends that the medical staff at NHJ, including
Advanced Registered Nurse Practitioner (“ARNP”) Karen Elgin fell below the applicable
professional standards of care in failing to properly evaluate, diagnose, and treat Mr. Brock. Id.
Specifically, Mrs. Brock alleges that the defendant, by and through its employee ARNP Elgin
failed to order a complete blood count (“CBC”), which would have allegedly shown signs of the

* Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation.

Case No. 3:21-cv-679-JAR-JBT

blood disorder that caused Mr. Brock’s decline and eventual death. Id. The United States asserts
that ARNP Elgin did not fall below the standard of care, that nothing indicates that Mr. Brock had
a blood disorder on the day he had his appointment with ARNP Elgin, and that even if a breach in
the standard of care occurred, that breach was not the proximate cause of Mr. Brock’s death.
Answer at J 25, ECF No. 8 (Oct. 4, 2021).
The court held a bench trial to resolve this claim. The court finds that Mrs. Brock has
demonstrated that the United States fell below the standard of care, that this breach was the
proximate cause of Mr. Brock’s death, and that Mrs. Brock is entitled to damages.
APPLICABLE LAW
IL Jurisdiction and Legal Standard
In a negligence action under the Federal Tort Claims Act, the law of the place where the
alleged act or omission occurred controls. 28 U.S.C. §§ 1346(b)(1), 2674. Here, the alleged
negligence occurred at the Naval Hospital Jacksonville in Jacksonville, Florida; therefore, Florida
law governs. Joint Ex. 1, ECF No. 64-1 (July 31, 2023) (“Jt. Ex. 1”). Under Florida law, the
plaintiff must prove by the preponderance of the evidence (1) the standard of care owed by the
defendant, (2) that the defendant breached that standard of care, and (3) that the breach proximately
caused the plaintiff's damages. See Fla. Stat. §§ 766.102(1) (2013), 766.102(3)(b); Prieto v. Total
Renal Care, Inc., 843 F. App’x 218, 224 (11th Cir, 2021).
“The prevailing professional standard of care for a given health care provider shall be that
level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is
recognized as acceptable and appropriate by reasonably prudent similar health care providers.”
Fla. Stat. § 766.102(1). In medical malpractice claims, the standard of care is determined by a
consideration of expert testimony. Pate v. Threlkel, 661 So. 2d 278, 281 (Fla. 1995). To establish

Case No. 3:21-cv-679-JAR-JBT

proximate cause in Florida, a plaintiff must prove that the defendant's negligence more likely than
not caused the plaintiff's injury. Gooding v. Univ. Hosp. Bldg., Inc., 445 So. 2d 1015, 1018 (Fla.
1984).
FINDINGS OF FACT
I. General Case Background
1. Richard Brock died on March 29, 2019, at the age of 54. Pl.’s Ex. 28, ECF No. 65-6 (July
31, 2023) (“Pl.’s Ex. 28”).
2. Mr. Brock married Joy Brock on December 15, 2015, and Joy is the Personal Representative
of the Estate of Richard Brock. Pl.’s Ex. 29, ECF No. 65-7 (July 31, 2023); Compl. at {
9.
3. Prior to his death, Richard Brock served in the U.S. Army for almost twenty years, spent
twelve years as a government contractor with the U.S. Military, and then was employed as
a mail carrier with the United States Postal Service (“USPS”) for nearly two years until his
death. Transcript of Bench Trial (Volume 1 of 4) at 225:1-22, ECF No. 69 (Aug. 22, 2023)
(“Vol. 1”); Jnt. Ex. 12 at USPS_0019.
4. The court held a bench trial July 24, 2023, to July 27, 2023.
5. Plaintiff presented six witnesses. First, Dr. Arthur Herold, who testified regarding the
appropriate standard of care. Vol. 1, 9:1-154:25. Second, Dr. Bernard Pettingill, who
testified regarding damages. Vol. 1, 155:1-219:25. Third, Catherine Stepalavich, Mr.
Brock’s sister, who, testified regarding Mr. Brock’s activity and marriage prior to his death.
Vol. 1, 220:1-251:25. Fourth, Joy Brock, Mr. Brock’s wife, who testified regarding Mr.
Brock prior to his death. Vol. 1, 25:1 -278:23. Fifth, Dr. Alexander Duncan, who testified
regarding causation. Transcript of Bench Trial (Volume 2 of 4) at 11:1-138:25, ECF No.

Case No. 3:21-cv-679-JAR-JBT

66 (Aug. 21, 2023) (“Vol. 2”). Sixth, Dr. John Schweiger, who testified regarding
causation. Vol. 2, 142:1-239:25.
6. The defense presented three witnesses. First, ARNP Elgin who testified by prior recording
as to her common practice and her interpretation of the notes she made on March 21, 2019.
See Elgin Tr., ECF No. 62 (July 26, 2023) (“Elgin Tr.”). Second, Dr. Pallay Mehta, who
testified regarding causation. Transcript of Bench Trial (Volume 3 of 4) at 14:1-196:8,
ECF No. 67 (Aug. 21, 2023) (“Vol. 3”). Third, Dr. Rosaline Vasquez, who testified
regarding the appropriate standard of care. Transcript of Bench Trial (Volume 4 of 4) at
5:1-165:11, ECF No. 68 (Aug. 21, 2023) (“Vol. 4”).
7. The parties dispute whether ARNP Elgin diagnosed Mr. Brock with an Upper Respiratory
Infection (“URI”) or a common cold. Although ARNP Elgin entered the code for an
“[a]cute upper respiratory infection, unspecified,” she referred to common colds and URIs
interchangeably in her testimony. Joint Ex. 5, NHJ_0257, ECF No. 64-5 (July 31, 2023)
(“Jt. Ex. 5”); Elgin Tr. 77:14-21 (“[I] got the impression that he had an upper respiratory
infection, a common cold.”). Dr. Herold testified that there are a number of types of URIs
such as tonsillitis and ear infections, but that if those are not present, then the typical URI
is a mild cold virus and the two are considered very close synonyms. Vol. 1, 21:10-22:6.
Dr. Vasquez testified that a common cold is a subset of a URI, particularly focusing on the
nose and throat. Vol. 4, 13:2-7. For the purposes of this opinion, the court finds that an
unspecified URI is typically a common cold, and the court interprets witness testimony as
using them interchangeably except where specified otherwise.
8. Systemic inflammatory response syndrome (“SIRS”) is the presence of two or more of the
following signs: abnormal body temperature, heart rate, respiratory rate, blood gas, and

Case No. 3:21-cv-679-JAR-JBT

white blood cell count. Vol. 2, 152:6-154:7. Sepsis occurs when a patient is diagnosed
with SIRS, and there is a known or suspected source of infection. Id. Severe Sepsis
includes evidence of organ dysfunction, and Septic Shock occurs when the patient’s
underlying process has progressed such that the patient’s blood pressure remains low
despite attempts by the physician to restore adequate volume. Id.
9, Neutropenic sepsis is an infection “caused by the fact the patient has no white blood cells to
defend himself with” and thus the patient is more predisposed to infections, triggering a
septic response. Vol, 2, 17:24-18:1, 154:8-155:14. White blood cells contain lymphocytes
and neutrophils. Id.; Vol. 3, 59:23-60:11. Neutropenia (low neutrophils) is commonly
seen with patients who have bloodborne cancer. Vol. 2, 155:7-14.
10, Pancytopenia occurs when all three blood elements are low. Vol. 1, 30:15-18. The three
elements are red blood cells, white blood cells, and platelets. Id.
11. Lymphoma is a type of hematological malignancy or blood cancer that can exist in the
body without a solid tumor and typically presents as Hodgkin’s or non-Hodgkin’s
lymphoma. Vol. 2, 232:17-234:19.
I. Undisputed Events
a. Time period prior to appointment with ARNP Elgin
12. On March 9, 2019, Mr. Brock began experiencing symptoms such as cough, congestion,
chills, fatigue, and body aches. Joint Ex. 4 at NHJ_0234, ECF No. 64-4 (July 31, 2023)
(“Jt. Ex. 4”)
13, On Monday, March 11, 2019, Mr. Brock took an unscheduled full day of leave without
pay and reported to the emergency department at the NHJ at 8:56 a.m. Jt. Ex. 4, NHJ_0233;

Case No. 3:21-cv-679-JAR-JBT

Joint Ex. 12 at USPS_0172, USPS_0183, USPS_0194, ECF No. 64-12 (July 31, 2023) (Jt.
Ex. 12”).
14. At this visit, Mr. Brock reported each of the symptoms he began experiencing on March 9,
2019, but did not report vomiting, shaking, inadequate oral intake, shortness of breath, or
abdominal pain. Jt. Ex. 4, NHJ_0234.
15. Mr. Brock reported pain of five out of ten, was diagnosed with a URI, and prescribed
Mucinex DM, Tessalon Perles, Tylenol, and Motrin. Jt. Ex. 4, NHJ_0238, NHJ_ 0233-35.
The physical exam reported a temperature of 99.2 degrees Fahrenheit and a heartrate of
106. Id. at NHJ_0233.
16. On Wednesday, March 13, 2019, Mr. Brock again took an unscheduled full day of leave
without pay and reported to the emergency department, this time at University of Florida
Shands Jacksonville (“Shands”) emergency room at 5:45 a.m. Jt. Ex. 12, USPS_0172;
Joint Ex. 11 at UF_0006, ECF No. 64-11 (July 31, 2023) (“Jt. Ex. 11”).
17. Mr. Brock again reported pain of five out of ten, and that he had been experiencing nausea,
vomiting, fever, cough, myalgias, and diarrhea for three to five days. Jt. Ex. 11, UF_0006,
UF_0028. Additionally, although Mr. Brock said the onset was gradual, the problem had
not changed since onset. Id. The record indicates that Mr. Brock did not have complaints
of shortness of breath or lightheadedness. Id. Shands prescribed Ondansetron, an anti-
nausea medicine, as needed and instructed Mr. Brock to follow up with his primary care
physician and return to the emergency room if symptoms changed or worsened. Id. at
UF_0007-0012; Vol. 1, 43:10-16. The physical exam reported a temperature of 98.2
degrees Fahrenheit and a heartrate of 94. Jt. Ex. 11, UF_0007.

Case No. 3:21-cv-679-JAR-JBT

18. Five days later, on Monday, March 18, 2019, Mr. Brock presented to Shands at 6:15 a.m.
Jt. Ex. 11, UF_0036-39. The medical record includes slight contradictions here. The
Certified Physician Assistant (“PA-C”) that conducted Mr. Brock’s exam noted that Mr.
Brock reported “flu like symptoms,” that he had pain of seven out of ten, but that his only
symptoms were nasal congestion and cough. Id. at UF_0039-44. Additionally, the PA-C
noted that Mr. Brock denied experiencing fever, nausea, vomiting, or a litany of other
symptoms. Id. Alternatively, the Registered Nurse noted that Mr. Brock complained of
fever, body aches, nausea, and vomiting that had started March 11, 2019. Id. at UF_0044.
The apparent contradiction could be explained by a temporal description of what Mr. Brock
felt in the moment versus over the past week. The physical exam reported a temperature
of 100.2 degrees Fahrenheit and a heartrate of 92. Id. at UF_0041.
19. Shands conducted a lung examination and chest x-ray which showed normal results. Jt.
Ex. 11, UF_0042. The PA-C instructed Mr. Brock to follow up with his primary care
physician and Mr. Brock agreed. Id. Mr. Brock called NHJ Family Practice Clinic to
schedule an appointment with a primary care physician for three days later. Joint Ex. 6 at
NHJ_0261, ECF No. 64-6 (July 31, 2023) (“Jt. Ex. 6”).
b. March 21, 2019, Appointment with ARNP Elgin!
20. Mr. Brock presented to the Family Practice clinic at NHJ at 8:40 a.m. for his scheduled ER
follow-up and was evaluated by ARNP Elgin. Jt. Ex. 5, NHJ_0254, Although Mr. Brock
reported that he was pain-free, he complained of mild dyspnea (shortness of breath), dry
cough, tactile fevers, and night sweats. Id. Additionally, the review of symptoms recorded

' ARNP Elgin testified to the fact that she did not specifically recall the visit with Mr. Brock.
Elgin Tr. 25:10-13. Accordingly, the court finds that the medical note created for the visit is the
most reliable source of information regarding what transpired during the visit.

Case No. 3:21-cv-679-JAR-JBT

by ARNP Elgin listed fatigue, fever, chills, headache, nasal discharge, nausea,
lightheadedness, cough, and shortness of breath during exertion. Id. at NHJ_0255. The
review of symptoms recorded several negative symptoms such as no sinus pain, no watery
or red eyes, no earache, and no sore throat. Id.
21. The physical exam reported a temperature of 98.3 degrees Fahrenheit and a heartrate of 60.
Jt. Ex. 5, NHJ_0254—56. Additionally, ARNP Elgin recorded that Mr. Brock was well-
appearing, and that he had no abnormal physical findings with his neck, ears, nose, oral
cavity, pharynx, lymph nodes, or cardiovascular system. Id. Finally, ARNP Elgin recorded
normal nasal mucosa, no nasal discharge seen, no redness of the nasal turbinate, no sinus
tenderness, and throat and tonsils were normal. Id.
22. In the history of present illness, there appears to be a typo, but Mr. Brock informed ARNP
Elgin that he had been suffering from flu-like symptoms for ten to eleven days, that he had
been diagnosed with a URI, and that he had visited the ER three times. Jt. Ex. 5,
NHJ_0254, NHJ_0257; Elgin Tr. 32:1-5. Additionally, ARNP noted that Mr. Brock
“(t]hinks it is time for antibiotics. Does not believe ‘viral.’ . .. Mailman. Many ill contacts.
Wife is well. Albuterol without any relief. .. . Seeking routine labs.” Jt. Ex. 5, NHJ_0254.
ARNP Elgin testified that “routine labs” meant that Mr. Brock specifically asked for an
order for blood work. Elgin Tr. 34:20-24.
23. ARNP Elgin diagnosed Mr. Brock with an “[a]cute upper respiratory infection, unspecified
J06.9: Again, likely viral, but due to duration [of sickness], will start doxy [f]or anti-inflam
effect.” Jt. Ex. 5, NHJ_0257. Additionally, ARNP Elgin demonstrated correct use of an
inhaler and provided a strict return precaution. Id.

Case No. 3:21-cv-679-JAR-JBT

24. ARNP Elgin prescribed Benzonatate 100 mg oral cap for the cough, a spacer for use with
the albuterol inhaler, Ibuprofen 600 mg oral tabs, and Doxycycline Hyclate 100 mg oral
tab. Jt. Ex. 5, NHJ_0257. Additionally, ARNP Elgin ordered a comprehensive metabolic
panel (“CMP”) and lipid panel to supplement the CMP Mr. Brock received in 2017.7 Id.;
Jt. Ex. 11, UF_0101. Mr. Brock was released without limitations and was to follow up as
needed. Id. The medical note does not list any instructions or notes related to the CMP,
nor education on the importance of having the blood test done immediately. See generally
id.; Jt. Ex. 5, NHJ_0254-57.
c. Time period after appointment with ARNP Elgin
25. At NHJ, the laboratory where blood is drawn for tests is located across the hall from the
pharmacy. Elgin Tr. 174:2-6. Mrs. Brock testified that she and Mr. Brock picked up the
prescriptions and waited approximately ten minutes for them but did not go to the
laboratory to have Mr. Brock’s blood drawn, Vol. 2, 253:9-25. Mr. Brock did not have
his blood drawn for the CMP or lipid panel. Joint Ex. 7 at NHJ_0264, ECF No. 64-7 (July
31, 2023).
26. During the week following his appointment with ARNP Elgin, Mr. Brock took no leave
without pay and worked 6.90 hours on March 23, 2019, and 7.54 hours on March 25, 2019.
Jt. Ex. 12, USPS_0175, 0183, 0192-93. Mr. Brock took a turn for the worse late at night
on March 26, 2019, and was seen shivering by Mrs. Brock and she felt a fever. Vol. 1,
269:22-270:01. This was the first time Mrs. Brock observed Mr. Brock with a high fever.

2 ARNP Elgin testified that the CMP was not ordered as part of a diagnostic evaluation of Mr.
Brock. Elgin Tr. 137:19-21.

Case No, 3:21-cv-679-JAR-JBT

Vol. 2, 256:20-257:01. Upon Mrs. Brock’s insistence, she drove Mr. Brock to the
emergency room. Vol. 1, 269:20—270:07.
d. Final ER Visit to Shands
27. On Wednesday, March 27, 2019, at 4:58 a.m. Mr. Brock presented to Shands emergency
room, Jt. Ex. 11, UF_0072. Mr. Brock complained of flu like symptoms for two weeks,
and complained of fever, cough, sinusitis, and generalized body aches. Id. at UF_0073.
Mr. Brock reported that he “[t]hought he was getting better but then past three to four days
he has gotten worse.” Id. Mr. Brock reported that he had no diarrhea, no nausea, no
rhinorrhea, no shortness of breath, no sore throat, and no vomiting. Id. During Mr. Brock’s
initial evaluation, although Mr. Brock appeared “well-developed and well-nourished”
without distress, he had a temperature of 101 degrees Fahrenheit and heartrate of 124. Id.
at UF_0075-76.
28. Dr. Ian Storch evaluated Mr. Brock during his first four hours at Shands. Jt. Ex. 11,
UF _0068. Dr. Storch then ordered a CBC,? which reported a white blood cell count of .43,
with the normal range being 4.5 — 11, a red blood cell count of 3.04, with the normal range
being 4.50 — 6.30, a hemoglobin count of 8.5, with the normal range being 14.0 — 18.0, and
a platelet count of 35, with the normal range being 140 — 440.* Id. at UF_0078. The white
blood cell count and platelet count were so low that a read back was called in to ensure
accuracy. Id.; Vol. 2, 184:8-16. Dr. Storch found this pancytopenia concerning but could
not determine the cause. Jt. Ex. 11, UF_0082.

3 There is no record of a CBC prior to the one ordered by Dr. Storch.
‘ Units are omitted.
10

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29. In an attempt to determine the cause of Mr. Brock’s condition, Dr. Storch ordered a CMP,
a chest x-ray, and an urinalysis (“UA”). Id. at UF_0068-83. All three checks came back
normal. Id. Additionally, Dr. Storch ordered blood drawn for blood cultures at 5:45 a.m.
Id. at UF_0096. The cultures showed no growth at less than 24 hours of incubation, id.,
nor after five days, id. at UF_0255-57.
30. With a fear of potential sepsis and febrile neutropenia, Dr. Storch ordered antibiotics and
Acyclovir (anti-viral medication), and transfusions of two units of platelets. Jt. Ex. 11,
UF_0068-83. Finally, Dr. Storch admitted Mr. Brock to the hospital for further evaluation
and treatment. Id. at UF_0082.
31. After admission, Mr. Brock was evaluated by hospitalist Dr. Vijayarama Vegesna. Jt. Ex.
11, UF_0068. Dr. Vegesna ordered a number of tests, including a gram stain, which is a
rapid way of determining the presence of bacteria in a tissue fluid. Id. at UF_0098; Vol.
2, 68:20-25. The gram stain resulted in no organisms seen. Jt. Ex. 11, UF_0098.
Additionally, Dr. Vegesna conducted a physical exam which noted that Mr. Brock had no
suspicious lesions or rashes.> Id. at UF_0094.
32. Dr. Vegesna diagnosed Mr. Brock with neutropenic sepsis and pancytopenia based on the
findings from the CBC. Id. at UF_0099. Dr. Vegesna took steps to treat a potential
infection, including meningitis, and requested additional tests such as blood cultures and
urine and cerebrospinal fluid analysis. Id.; Vol. 2, 174:10-175:15; Vol. 2, 178:3-13.

5 Later on in the day on March 27, 2019, a bruise was noticed on Mr. Brock’s left lower
extremity and first recorded in Dr. Ravi’s review of systems. Jt. Ex. 11, UF_0103. This bruise
was later referred to as an ulcerated circular lesion and identified as a potential insect bite. Id. at
UF_0128, UF_0134.
1]

Case No. 3:21-cv-679-JAR-JBT

Additionally, Dr. Vegesna requested a consult from an infectious disease specialist. Jt. Ex.
11, UF_0099; Vol. 2, 178:14-20.
33. Mr. Brock was assessed by infectious disease physician Dr. Malleswari Ravi on March 27,
2019. Jt. Ex. 11, UF_0101. After reviewing all of the medication Mr. Brock had taken
both at Shands and prior to his arrival, as well as the tests and evaluations conducted at
Shands on the 27th, Dr. Ravi could not identify any specific source of infection. Id. at
UF_0108. Dr. Ravi requested additional testing and a hematology/oncology consult. Id.
34. Dr. Jason Hew conducted the hematology/oncology consult, and concluded that the
“[o]verall clinical picture is highly suspicious of an acute hematological malignancy.” Jt.
Ex. 11, UF_0136. Dr. Hew recommended an “[u]rgent bone marrow aspirate and biopsy”
and discussed transferring Mr. Brock to UF Downtown in the event that inpatient
chemotherapy was necessary. Id, at UF_0134-36. Mr. Brock wanted to see the results of
the bone marrow biopsy prior to being transferred. Id. at UF_0137.
e. Mr. Brock’s decline and death
35. On March 28, 2019, Mr. Brock received a blood transfusion of two units of blood,
including one at a rapid rate over one hour. Jt. Ex. 11, UF_0138, UF_0161. After
completion of the second unit, Mr. Brock’s oxygen levels dropped and he was transferred
to the ICU. Id. at UF_0161. His status continued to worsen, and on March 29, 2019, he
began to lose a pulse and his blood pressure could not be maintained. Id. After one final
transfusion his pulse was again lost and the hospital was unable to reestablish a perfusing
rhythm. Id. Mr. Brock was pronounced dead at 4:23 p.m. Id.
36. Mr. Brock’s death certificate was issued by Dr. Hester and the official cause of death was
listed as cardiac arrest, respiratory failure, cardiomyopathy, and pancytopenia. Pl.’s Ex.

12

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28. The cause of death primarily relates to the heart, lungs, and blood. Id.; Vol. 2, 135:6-
25. Prior to March 28, 2019, there was no indication Mr. Brock was experiencing issues
with his heart or lungs. Vol. 2 193:7-195:24.
f. Autopsy
37. Dr. Brett Baskovich of UF Shands Health performed an autopsy on Mr. Brock. PI.’s Ex.
1 at J_0469-70, ECF No. 65-1 (July 31, 2023) (“PI.’s Ex. 1”). The autopsy was ordered
on April 3, 2019, and preliminarily signed on April 5, 2019. Id. at J_0469, J_0475.
38. The clinical history and final! summary reports Mr. Brock as a patient with “past medical
history of febrile neutropenia, lower extremity cellulitis, neutropenic sepsis, pancytopenia
and severe biventricular dysfunction, who presented with fever and flu-like symptoms and
was admitted.” PI.’s Ex. 1, J_0469, The report continues that Mr. Brock “received red
blood cell transfusion followed by rapid clinical deterioration. Resuscitation attempts
failed and the patient was pronounced dead on 3/29/19 at 1623.” Id.
39. The major autopsy findings included “cardiomegaly, congestion of the lungs and bilateral
pleural effusion.” Id. at J_0470. Significantly, the autopsy notes that the “bone marrow is
hypercellular, but evaluation is suboptimal at autopsy due to autolysis of the majority of
the cells. While a leukemia would be a possible cause, such hypercellularity could also be
seen as a reaction to conditions such as hemolysis.” Id. The final summary concludes that
Mr. Brock’s “demise was likely related to sepsis and pancytopenia as well as chronic heart
conditions.”® Id.

Dr. Schweiger, while interpreting the autopsy, cautioned the court that the autopsy examines
Mr. Brock’s end of life conditions and that some of the findings developed extremely close to
death such as the cardiomegaly which was definitively not present on March 28, 2019. Vol. 2,
197:1-25.
13

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II. Standard of Care
a. The court accepts Dr. Herold and Dr. Vasquez as Rule 702 experts
40. Plaintiff presented Dr. Arthur Herold as her standard of care expert. Dr. Herold is a medical
doctor specializing in family practice medicine. Vol. 1 9:9-10:25. He graduated from
medical school in 1980, performed a military residency, and has been board certified in
Family Practice medicine since 1983. Id. He was a full-time faculty member at the
University of South Florida College of Medicine from 1987 to 2022 where he taught
medical students, nurse practitioner students, and physician assistant students. Id. The
court accepts Dr. Herold as a Rule 702 expert witness in family practice medicine. Id, at
16:8-11.
41. Defendant presented Dr. Rosaline Vasquez as its standard of care expert. Dr. Vasquez runs
a private consultative practice where she consults with hospitals on the severity and gravity
of a patient’s illness. Vol. 4, 5:13-23. Additionally, Dr. Vasquez is a clinical adjunct
professor at the Stanford School of Medicine where she teaches residents and students
patient care in an outpatient capacity. Id. at 5:7-9:12. Dr. Vasquez is board certified in
Internal Medicine. Id. The court accepts Dr. Vasquez as a Rule 702 expert witness in the
field of internal medicine. Id, at 9:19-23.
b. Dr. Herold’s opinions as to the standard of care and breach
42. Dr. Herold testified that ARNP Elgin fell below the standard of care in her examination
and assessment of Mr. Brock on March 21, 2019. Vol. 1, 55:19-58:22. To support this, he
testified that it was unheard of for a patient with a URI to visit an emergency room three
times prior to seeing a primary care provider. Id. at 19:18-20:23. Dr. Herold noted that
several symptoms, including the length of illness, tactile fevers, and night sweats were

14

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inconsistent or not prominent symptoms with a URI. Id, at 39:4-48:9. Of particular
importance to Dr. Herold was Mr. Brock’s shortness of breath with exertion, which Dr.
Herold testified is a significant finding that indicates a worsening condition. Id, at 142:22-
143:8. Additionally, Dr. Herold noted that albuterol, which Mr. Brock reported was
helping his symptoms, is a medication for the lower, not upper respiratory tract and should
not affect a URI. Id. at 36:17-41:11. Dr. Herold testified that together, these symptoms,
which ARNP Elgin should have taken as true, should have indicated that Mr. Brock had
something more serious than a URI. Id.
43. Additionally, Dr. Herold noted that several common indicators of a URI were not present,
such as sinus pain, watery or red eyes, earache, and sore throat. Id. at 45:18-52:12. ARNP
Elgin failed to note a pulmonary examination, abdominal examination, and examination of
the eyes, which Dr. Herold noted were essential examinations that could have shown
indicators of a low blood count. Id. at 54:3-23. Finally, considering the length of illness,
Dr. Herold testified that ARNP Elgin should have reviewed the medical records from Mr.
Brock’s ER visits, and that she fell below the standard of care by failing to do so. Id. at
56:12-21. Overall, Dr. Herold testified that it was ARNP Elgin’s responsibility to reconcile
the inconsistencies in the record with a diagnosis of a URI. Id. at 56:12-57:25.
44. Dr. Herold testified that due to Mr. Brock’s report that he had been experiencing tactile
fevers for ten to eleven days, ARNP Elgin should have included sepsis on her differential
diagnosis list. See Vol. 1, 68:12-20. Accordingly, Dr. Herold testified a CBC was required
to evaluate Mr. Brock, particularly to identify whether there was a disturbance in his white
blood cell count. Id. A CBC is used for symptomatic patients whereas a CMP is for
asymptomatic patients. Id. at 28:25-29:15.

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45, In summary, it was Dr. Herold’s opinion that ARNP Elgin violated the standard of care by
failing to order a CBC for Mr. Brock on March 21, 2019.
c. Dr. Vasquez’s opinions as to the standard of care and breach
46. Dr. Vasquez testified that ARNP Elgin met the standard of care in her treatment of Mr.
Brock. First, she testified that ARNP Elgin took an excellent patient history. Vol. 4, 11:20-
23. Next, she testified that ARNP Elgin performed a focused and detailed physical exam
and thoroughly documented the results, with the exception of the lung exam. Id. at 12:5-
10. Dr. Vasquez testified that a URI can last anywhere from seven to ten days, or up to
three weeks, and that symptoms can peak at day two or three. Id. at 15:17-24. Finally, Dr.
Vasquez testified that Mr. Brock’s three prior ER visits were not alarming; instead
testifying that the visits indicated that Mr. Brock sought treatment while feeling ill. Id. at
37:22-38:5.
47. In summary, Dr. Vasquez concluded that Mr. Brock’s symptoms, vitals, and physical exam
were well within the normal range of a URI and that ARNP Elgin did not breach the
standard of care by failing to obtain Mr. Brock’s medical records or order a CBC. In fact,
Dr. Vasquez opined that it would have been wasteful to order a CBC for Mr. Brock, and
that there was no unanswered clinical question that laboratory data would have helped
diagnose. Vol. 4, 74:3-10; 83:14-21.
48. Dr. Vasquez, however, admitted that Mr. Brock presented with some signs and symptoms
of anemia such as shortness of breath, fatigue, and dizziness. Vol. 4, 85:10-86:7.
Additionally, Dr. Vasquez admitted that a CBC is appropriate when a patient is suspected
of having anemia. Id. Dr. Vasquez admitted that ARNP Elgin should have assumed Mr.
Brock’s statements regarding his illness were accurate. Id. at 57:25-58:6. Accordingly,

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Dr. Vasquez admitted that a twelve-day history of fever and chills is a pertinent finding,
and that in her own practice she has investigated a patient with a febrile illness that had
lasted for twelve days. Id. at 138:8-11.
49. Dr. Vasquez testified that based on the ER records Mr. Brock was getting better; she
admitted, however, that ARNP Elgin did not have access to the ER records to make that
determination and that Mr. Brock told his healthcare providers, including ARNP Elgin,
that he was not feeling better, not getting better, and that he was perplexed as to why his
symptoms had not gone away. Id. at 115:4-116:24. Finally, Dr. Vasquez admitted that
there was no medical evidence that Mr. Brock had a URI, and that he had no complaints of
common symptoms such as sneezing, runny nose, sore throat, post-nasal drip, or watery
eyes. Id, at 92:9-15, 148:22-25, 149:19-24, 152:12-153:2. Yet, Dr. Vasquez testified that
Mr. Brock presented with a “very, very stereotypic presentation of an upper respiratory
infection.” Id. at 92:17-21.
d. ARNP Elgin breached the standard of care
50. In consideration of the many inconsistencies in Dr. Vasquez’s testimony, the court finds
that Dr. Vasquez’s opinions are not credible and are unsupported by the evidence in this
case.
51. The court finds that Dr. Herold’s opinions were reasonable and consistent, and therefore
accepts and incorporates all of Dr. Herold’s standard of care opinions listed supra Findings
42-44 as to breach of standard of care.
52. In particular, the court finds that ARNP Elgin failed to reconcile the inconsistency between
Mr. Brock’s history of illness and presenting signs and symptoms with her diagnosis; failed
to conduct a thorough exam; failed to obtain and review Mr. Brock’s medical records from

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his recent ER visits; failed to consider alternative causes for his condition; failed to satisfy
Mr. Brock’s request for diagnostic blood work; and ultimately fell below her standard of
care by failing to order a CBC and educate Mr. Brock on the importance of having the lab
work completed. The court finds the breach to be clearly established.
Proximate Cause
a. The court accepts Dr. Schweiger, Dr. Duncan, and Dr. Mehta as Rule 702 experts
53. Plaintiff presented Dr. John Schweiger as her first expert witness on the issue of causation,
Dr. Schweiger is a medical doctor specializing in critical care medicine and anesthesiology.
Vol. 2, 142:21-144:18. Additionally, Dr. Schweiger became an associate professor and the
Director of the Critical Care Program at University of South Florida College of Medicine
in 1999 and has been a full clinical professor since 2017. Id. Dr. Schweiger is board
certified in anesthesiology, critical care, and acute and chronic pain management. Id. at
145:23-146:5. On a day-to-day basis, Dr. Schweiger spends the vast majority of his time
in a clinical setting where approximately half of his work is done in the intensive care units.
Id, at 146:15-157:4. Dr. Schweiger estimates that he has managed over 6,000 patients with
a diagnosis of sepsis, approximately 300 to 400 patients with neutropenic sepsis, and
approximately 300 to 400 patients with pancytopenia. Id, at 147:9-25. The court accepts
Dr. Schweiger as a Rule 702 expert witness in critical care medicine. Id. at 149:14-150:3.
54. Plaintiff presented Dr. Alexander Duncan as her second expert witness on the issue of
causation. Dr. Duncan is a medical doctor specializing in clinical pathology (the study and
interpretation of laboratory testing) and transfusion medicine. Vol. 2, 14:13-23. He
graduated from medical school in Glasgow, Scotland, and completed two residencies and
a fellowship at the Mayo Clinic in Rochester, Minnesota. Id. at 12:4-20. Between 1984

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and 2022, Dr. Duncan held various positions at Emory University School of Medicine,
working in interventional laboratory medicine, transfusion medicine, and special
coagulation. Id. at 12:23-13:4, 27:4-5, 28:3-8, 29:3-30:16. During this period, Dr. Duncan
spent about ten years as the director of the hemapheresis section, was an appointed member
of the Department of Hematology and Oncology, and saw patients on a weekly basis. Id.
. Dr. Duncan is currently board certified in clinical pathology and transfusion medicine, and
was previously board certified in internal medicine. Id, at 14:13-18. Dr. Duncan estimates
that he has evaluated and diagnosed about one hundred patients with neutropenic sepsis
and has diagnosed blood cancer hundreds of times in his career. Id. at 18:19-23, 130:14-
18. The court accepts Dr. Duncan, over objection, as a Rule 702 expert witness in
hematology with a focus in transfusion medicine and clinical pathology. Id. at 37:19-21.
55. The defense presented Dr. Pallav Mehta as its only witness on the issue of causation. Dr.
Mehta is a medical doctor specializing in hematology and oncology and is board certified
in hematology, oncology, and integrative medicine. Vol. 3, 14:8-25. Dr. Mehta is an
assistant professor of medicine at the MD Anderson Cancer Center, and is the chief of
hematology and oncology at one of the MD Anderson satellite hospitals: Redeemer Holy
Hospital in Philadelphia. Id. at 14:16-15:9. Additionally, Dr. Mehta is the medical director
of the cancer center and the director of integrative oncology at this satellite. Id. Outside
of the clinical setting where Dr. Mehta primarily sees breast cancer patients, Dr. Mehta is
the medical director of a venture-funded oncology innovation startup company. Id. at
15:16-16:5. The court accepts Dr. Mehta, as a Rule 702 expert witness in oncology and
hematology. Id. at 24:6-25:1.

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b. Dr, Schweiger’s opinions as to cause of death
56. Dr. Schweiger testified that he believes Mr. Brock had a bloodborne malignancy, which
caused his pancytopenia and neutropenic sepsis, which led to his death. Vol. 2, 156:5-
157:3. To support his opinion, Dr. Schweiger relied on the process of elimination,
narrowing the possible causes of Mr. Brock’s symptoms to just a bloodborne malignancy.
Id.
57. First, Dr. Schweiger found no potential source of an infection. Upon admission, despite
numerous skin assessments no doctor or nurse noted any significant skin injuries, bruising,
or cellulitis on Mr. Brock. Vol. 2, 175:21-178:13. Additionally, the chest x-rays and CT
scan were negative for any lung processes. Id. at 175:21-176:18. The tests ordered to
evaluate Mr. Brock’s blood, urine, and cerebral spinal fluid also all came back negative for
an infection. Id. at 175:21-178:13.
58. Second, Dr. Schweiger testified that Mr. Brock did not present as a patient whose severe
sepsis caused his pancytopenia. In Dr. Schweiger’s experience, patients admitted with
sepsis do look ill as opposed to reasonably well, have acute respiratory failure, acute kidney
injury with dramatic reduction in urine output, and their creatine is markedly elevated. Vol.
2, 155:15-157:3. Mr. Brock had none of these symptoms. Id. at 156:5-157:3.
Additionally, when pancytopenia is caused by severe sepsis, patients have profound low
blood pressure prior to the pancytopenia and Mr. Brock had blood pressure within the
normal range upon admission.’ Id. at 161:12-163:5, 168:2-171:8; Jt. Ex. 11, UF_0075.

7 Dr. Schweiger testified that MR. Brock did not have “his first critically low blood pressure”
until later in the evening on March 28, 2019, over 24 hours after admission. Vol. 2, 186:7-9.
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59. Third, Dr. Schweiger testified that additional testing and treatment in the hospital
confirmed the lack of severe sepsis upon arrival. Vol. 2, 181:10-184:4. Mr. Brock had a
lactic acid of 0.6, but a neutropenic patient with severe sepsis not caused by the neutropenia
must have lactic acid greater than 4.0. Id. Further, Mr. Brock’s white blood cell count
went from .43 upon arrival to .42 the next day—indicating that despite the initial treatment
with antibiotics and fluid management, he did not improve. Id. This indicated to Dr.
Schweiger that there must be another major underlying process in Mr. Brock’s bone
marrow. Id.
60. Fourth, Dr. Schweiger agreed with the results of the infectious disease consult and the
hematology/oncology consult. Vol. 2, 178:14-180:20, 184:17-185:3. On March 27, 2019,
the infectious disease physician, Dr. Ravi, agreed with the initial application of antibiotics
and antivirals, but could not find a source of an infection and recommended a
hematology/oncology consult. Id. On March 28, 2019, still unable to identify a potential
bacteria or virus, Dr. Ravi’s partner stopped the anti-viral and one of the antibiotics. Id.
According to Dr. Schweiger, it was clear the doctor was “not convinced that at the time
they made [the initial recommendation for treatment] that he was being overwhelmed with
either bacterial sepsis or viral sepsis, because common sense would dictate you would not
stop broad-spectrum antibiotic therapy in a patient who’s neutropenic if there was an active
infection at the time.” Id. at 180:1-6. Dr. Schweiger testified that Dr. Hew, the
hematologist/oncologist that evaluated Mr. Brock, was concerned about a hematologic
malignancy and attempted to convince Mr. Brock to undergo a bone marrow biopsy for
confirmation. Id. at 184:17-185:3; Jt. Ex. 11, UF_0136—37 (“Overall clinical picture is
highly suspicious of an acute hematological malignancy .. . . 1 discussed with the patient

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transferring him to UF Downtown in the event that he needs inpatient chemotherapy but
he refused. He wants to wait to see the results of the Bone Marrow first.”).
61. Dr. Schweiger testified that Mr. Brock’s eventual death was a result of a reaction to the
hospital’s attempt to treat his “severely low hemoglobin and hematocrit.” Vol. 2, 185:9-
189:21. Shands made the decision to give Mr. Brock a rapid blood transfusion, which
overloaded the heart and lungs, eventually leading to Mr. Brock’s organ failure and death.
Id. Dr. Schweiger reviewed the death certificate and while he agreed, he testified that he
does not think Mr. Brock had cardiomyopathy prior to March 29, 2019, and that Mr.
Brock’s cardiomyopathy was a result of the dying process that caused this sudden insult to
his heart. Id. at 193:11-195:24.
c. Dr. Duncan’s opinions as to cause of death
62. To begin his process of elimination, Dr. Duncan ruled out several causes of pancytopenia
that the medical evidence did not support such as trauma, burns, autoimmune disease,
nutritional deficiency, medications or drug toxicity, and megaloblastic anemia. Vol. 2,
63:19-64:20, 66:7-67:24.
63. Next, Dr. Duncan looked at a potential infection and determined that Mr. Brock did not
have a bacterial infection upon admission. Vol. 2, 42:15-25. He explained that if Mr.
Brock had a primary infection on admission, his white cell count would have been higher
as his body’s response to fight the infection. Id. Additionally, Dr. Duncan testified that
the body should have pushed out neutrophils and bands® in response to a bacterial infection
had Mr. Brock had one, yet there were zero bands. Id. at 67:25-68:13. Dr. Duncan also

8 Bands are the immature precursor to normal neutrophils that can be pushed out when an acute
process is happening in the body. Vol. 3, 58:24-59:19.
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testified that had Mr. Brock had an infection, Dr. Duncan would have expected to see signs
of abnormal organ function on the basic metabolic panel (“BMP”) taken upon admission.
Id. at 44:24-46:5. Yet, all of the BMP values were normal. Jt. Ex. 11, UF_0291-92.
Finally, Dr. Duncan found the lack of growth on the blood cultures taken upon admission
to be somewhat definitive, testifying that lack of growth after five days of incubation
“would indicate that there’s no evidence of bacterial infection of any kind.” Vol. 2, 72:25-
75:15, 105:19-106:1; Jt: Ex. 11, UF_0096, UF_0255.
64. Looking at a potential viral infection, Dr. Duncan testified there was no indication of a
virus and all of the tests to find a viral infection came back negative. Vol. 2, 76:25-79:14,
80:5-81:2. Additionally, Dr. Duncan opined that Shands performed “a very, very complete
[infectious disease] consult.” Id. at 79:5.
65. Importantly, Dr. Duncan noted that Mr. Brock’s blood cultures and blood draws for the
CBC and BMP were taken prior to the administration of three powerful broad-spectrum
antibiotics, and that the doxycycline taken previously would not have wiped out a severe
infection or invalidated the laboratory studies. Vol. 2, 75:21-76:24.
66. As opposed to an infection, Dr. Duncan found several signs of an underlying hematological
malignancy in the medical records. Primarily, the CBC showed that Mr. Brock had 22.6
atypical lymphocytes and he had lymphocytes in his cerebrospinal fluid. Vol. 11,
UF_0079; UF_0095; UF_0135; UF_0290. These lymphocytes, Dr. Duncan explained, are
an indicator of blood cancer, particularly of lymphoma. Vol. 2, 71:1-25. Dr. Duncan
further noted that Dr. Hew asked for a hematopathologist to look at the lymphocytes. Id.
Accordingly, considering the elimination of other potential causes of the pancytopenia, Dr.

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Hew’s consult, and the overall clinical picture, Dr. Duncan concluded that Mr. Brock must
have had a hematological malignancy. Id. at 91:9-10.
67. Finally, Dr. Duncan testified that the autopsy evidence was consistent with lymphoma.
Vol. 2, 94:16-25. First, Mr. Brock’s enlarged spleen was consistent as the spleen produces
B-cells,? and they increase in patients with lymphomatous diseases and lymphoid
malignancies. Id. Second, Dr. Duncan testified that the hypercellularity in Mr. Brock’s
bone marrow indicated a hematological malignancy as the body typically pushes cells out
to fight the cancer. Id. at 94:2-15. Dr. Duncan did qualify his analysis here, because the
biopsy sample was very poor and mainly contained dead cells. Id, at 132:10-25.
68. The autopsy report notes, “[t]he findings are nonspecific and evaluation is severely limited
by postmortem autolysis.'? While leukemia is a possibility due to limited
immunohistochemistry on the autolyzed tissue, the hypercellularity could also be explained
by response to hemolysis!! or other triggers.” PI.’s Ex. 1, J_0474. Dr. Duncan testified
that this note must be read with the understanding that the hematopathologist who reviewed
the bone marrow sample did not have all of Mr. Brock’s medical records and was making
generic suggestions based only on the autopsy results. Vol. 2, 96:16-97:3.

9 B-cells and T-cells are a specific type of white blood cell called lymphocytes. B-cells: Types
and Function, Cleveland Clinic (Feb. 1, 2023), https://my.clevelandclinic.org/health/body/24669-
b-cells. Lymphocytes fight harmful invaders and abnormal cells like cancer cells. Id.
Specifically, B-cells make antibodies in response to markers that the body uses to identify
substances such as viruses and bacteria.
'© Autolysis is a process of the blood cells in the body clotting and then breaking down after
death. Vol. 2, 92:9-13.
'! Hemolysis is the destruction or breakage of the cell membrane of the red blood cell, which
allows the internal contents of the red blood cell to then explode into the bloodstream. Vol. 2,
236:13-18.
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69. Dr. Duncan disagreed with the theory of hemolysis, as Mr. Brock’s LDH levels were tested
each day at Shands and came back normal every time. Vol. 2, 96:16-97:3. Dr. Duncan
explained that LDH is lactate dehydrogenase and that when red cells are destroyed, LDH
is released into the bloodstream. Id. at 96:16-99:10. Accordingly, Dr. Duncan testified
that the body must have ceased production of red blood cells rather than destroyed them.
Id. Supporting this, Dr. Duncan also noted that upon admission Mr. Brock’s bilirubin”?
level was normal, and that if hemolysis was occurring prior to admission Mr. Brock’s
bilirubin level should have been elevated. Vol. 2, 99:20-100:13.
70. In summary, Dr. Duncan found that with all causes of the pancytopenia other than
lymphoma eliminated, and with Mr. Brock presenting as a “fairly classic” patient with a
lymphoma-type disease, that there is reasonable degree of medical certainty that Mr. Brock
had lymphoma. Vol. 2, 86:7-11; 88:11, 101:1-5.
d. Dr. Mehta’s opinions as to cause of death
71. Dr. Mehta testified that the medical evidence supports the contention that Mr. Brock had
severe sepsis caused by a bacterial infection upon his admittance to Shands on March 27,
2019. Vol. 3, 66:15-18. Critical to Dr. Mehta’s diagnosis was Mr. Brock’s procalcitonin
levels, which was measured ftom a blood sample collected from Mr. Brock just past
midnight on March 29, 2019. Id. 66:19-25, 67:1-2; Jt. Ex. 11, UF_0268. Dr. Mehta
explained that Mr. Brock’s procalcitonin level was elevated, revealing the presence of a
bacterial infection with ninety-five percent sensitivity. Vol. 3, 66:19-25, 68:4-17. Dr.
Mehta admitted, however, that this sample was taken on March 29, 2019, two days after
Mr. Brock was hospitalized, and did not rule out the possibility of an issue with the bone

!2 Bilirubin is a material made in the liver. Vol. 2, 99:20-25.
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Case No. 3:21-cv-679-JAR-JBT

marrow. Id, at 69:9-25. Dr. Mehta did not address the possibility that the procalcitonin
levels could have been due to an infection Mr. Brock gained while he was in the hospital
and neutropenic with negligible white blood cells to combat infection.
72. Contrary to Dr. Schweiger and Dr. Duncan’s opinion, Dr. Mehta testified that the
administration of antibiotics can lead to false negative blood cultures, and that the
prescription for doxycycline during Mr. Brock’s March 21, 2019, visit likely invalidated
the blood cultures. Id. 139:10-141:25. Dr. Mehta further cited the empiric antibiotics
Shands placed Mr. Brock on upon arrival as a source of interference with the negative
blood cultures. Id. 141:20-25. Dr. Mehta admitted, however, that the broad-spectrum
antibiotics given to Mr. Brock at Shands had no impact on the blood cultures as the sample
was taken prior to the administration of the antibiotics. Id. 76:8-11.
73. As a potential source for the bacterial infection, Dr. Mehta identified the cellulitis on Mr.
Brock’s lower left extremity, which a nurse discovered and noted was “suspicious for
possible insect bite” on March 28, 2019. Vol. 3, 84:6-85:2; Jt. Ex. 11, UF_0103, UF_0128.
Dr. Mehta, however, could not say within a reasonable degree of medical probability that
this was the source of an infection. Vol. 3, 131:1-19. Additionally, Dr. Mehta did not
address the fact that the infectious disease physician stopped several broad-spectrum
antibiotics on March 28, 2019, nor the fact that the Dr. Ravi did not mention the lower left
extremity as a potential source of infection in his diagnosis despite noting a bruise there.
74. Dr. Mehta admitted that there was no sign of viral sepsis or primary vital infection. Vol.
3, 125:3-4, 160:13-15.
75, Dr. Mehta testified that the evidence does not support a diagnosis of a hematological
malignancy or lymphoma, but rather indicates a process destroying the cells outside of the

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bone marrow. Vol. 3, 108:6-11. To support his contention, Dr. Mehta testified that
although the lack of white blood cells was inconclusive regarding whether the bone marrow
was functional, the presence of large platelets indicated that the bone marrow was
functional and responding to an issue in the bloodstream. Vol. 3, 60:12-63:7. Additionally,
Dr. Mehta noted the ineffectiveness of the transfusion Mr. Brock received, testifying that
the only explanation of Mr. Brock’s hemoglobin decreasing after a transfusion is active
destruction in the blood itself. Id. at 95:15-23. Finally, Dr. Mehta pointed to Mr. Brock’s
enlarged spleen as evidence of an active process in the blood that was destroying cells,
explaining that the spleen produces natural killer cells that drag red cells and platelets from
the peripheral blood into the spleen and sometimes liver for destruction. Id, at 107:17-
108:22,
76. Looking to the autopsy, Dr. Mehta found it conclusive that Mr. Brock’s bone marrow was
hypercellular yet not a single cancer cell was identified: ruling out blood cancer. Vol. 3,
192:21-23. Dr. Mehta explained that when cancers cause pancytopenia, they do so by
infiltrating the bone marrow and crowding out healthy cells such that they cannot be
produced in adequate amounts. Id. 106:8-10. Based on the severity of Mr. Brock’s
pancytopenia, Dr. Mehta testified that a cancer would have needed to be of such severity
that it would have replaced the marrow within the cavity and that would have been
immediately noticeable during the autopsy. Id. 106:11-20.
77. Dr. Mehta, however, did not address the note by the hematopathologist, who consulted on
the bone marrow in the autopsy, which raised leukemia as a potential cause of Mr. Brock’s
hypercellularity. Pl.’s Ex. 1, J_0474. Dr. Mehta’s testimony directly contradicted this

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note, testifying that the autopsy definitively ruled out leukemia due to a lack of cancer cells
in the bone marrow sample. Vol. 3, 103:19-105:2.
78. Additionally, Dr. Mehta contradicted himself concerning the reliability of the bone marrow
biopsy in the autopsy. First, Dr. Mehta said, “if a patient passes away and an autopsy is
done three, four, five days later, the reliability of a bone marrow biopsy is pretty low, and
it’s hard to really make any claims about it at all.” Vol. 3, 103:9-12. Dr. Mehta continued
that if the autopsy had been performed “even a week later [from the date of death,] I likely
would not have given it any weight at that point.” Id. at 105:20-23. This testimony matches
the note left by the hematopathologist who reviewed the bone marrow biopsy and noted
that it was difficult to draw conclusions due to autolysis. Pl.’s Ex. 1, J_0474. Dr. Mehta,
however, later, after learning that the autopsy was performed five days postmortem rather
than the same day, testified that he still believed that the sample was adequate due to the
description of the bone marrow from the hematopathologist. Vol. 3, 108:23-109:25. Dr.
Mehta, however, did not explain why the hematopathologist’s description indicated the
sample was adequate and the court does not credit his explanation. Id.
79. Finally, Dr. Mehta testified that there is no medical evidence to suggest that Mr. Brock
suffered from lymphoma, primarily relying on the lack of swollen lymph nodes. Vol. 3,
176:21-25. Dr. Mehta did admit, however, that lymphoma could occur without lymph
involvement if there was involvement of the bone marrow, but said that such a lymphoma
would not cause pancytopenia. Id. at 176:21-177:25.
80. The court notes that many of the signs and symptoms Dr. Mehta relied upon for his eventual
diagnosis were not present upon Mr. Brock’s presentation to Shands.

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81. First, the bruise on Mr. Brock’s LLE was not documented until 5:18 p.m. on March 27,
2019, twelve hours after Mr. Brock presented to Shands. Jt. Ex. 11, UF_0103. Although
Dr. Mehta testified that a bruise such as this could be missed by emergency room nurses
and physicians as skin examinations are not the focus for someone who presents to the
emergency room, Dr. Schweiger testified that it is standard practice to do extremely
thorough examinations of neutropenic patients due to the increased risk of infection. Vol.
3, 149:5-151:11; Vol. 2, 176:19-177:21.
82. Second, Dr. Mehta relies heavily on Mr. Brock’s procalcitonin levels to support Dr.
Mehta’s contention that Mr. Brock’s pancytopenia was caused by severe sepsis. Vol. 3,
67:18-69:15. Nevertheless, the sample Dr. Mehta relies upon was taken on March 29,
2019, over 43 hours after Mr. Brock presented to Shands. Jt. Ex. 11, UF_0268. Dr.
Schweiger testified, and the court agrees, that Mr. Brock was predisposed to developing
sepsis due to his neutropenia, so it is not a surprise that on March 29, 2019, Mr. Brock had
indicators of sepsis. Vol. 2, 199:7-200:9, 213:13-20.
83. Third, Dr. Mehta relies on the failed transfusions and the autopsy report to support his
theory that a process was happening in the blood rather than the bone marrow itself. Vol.
3, 95:15-96:5. The transfusions, however, first took place on March 28, 2019, at which
point Mr. Brock had been neutropenic for at least 24 hours and could have contracted an
infection causing the results Dr. Mehta relies upon. Jt. Ex. 11, UF_0164. Dr. Mehta failed
to explain how signs recorded after March 27, 2019, definitively show that Mr. Brock’s
pancytopenia was caused by an infection on March 26, 2019, despite Mr. Brock’s
apparently functioning organs the morning of March 27, 2019.

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e. More likely than not, Mr. Brock died of an acute hematological malignancy
84. In consideration of the inconsistencies in Dr. Mehta’s testimony, his reliance on Mr.
Brock’s signs and symptoms to show an infection after Mr. Brock had been neutropenic
for over 24 hours, his contradiction both with himself and with the hematopathologist who
performed the autopsy, and his lack of specificity in excluding lymphoma, the court finds
that Dr. Mehta’s opinions are not credible and are unsupported by the evidence in this
case,
85. The court finds that Dr. Schweiger’s and Dr. Duncan’s opinions were reasonable and
consistent, and therefore accepts and incorporates all opinions listed supra findings 56-69
as to cause.
86. In particular, the court finds that more likely than not, Mr. Brock’s severe pancytopenia
was caused by a hematological malignancy, most likely non-Hodgkin’s lymphoma, and
that upon his presentation to Shands on March 27, 2019, Mr. Brock did not have severe
sepsis, or any bacterial or viral infection sufficiently advanced enough to cause his
pancytopenia.
f. Dr. Schweiger’s opinions as to indicators of pancytopenia on March 21, 2019
87. Dr. Schweiger testified that Mr. Brock’s death was preventable. Specifically, Dr.
Schweiger testified that had adequate time been available to work through the differential
diagnosis, and importantly, had Mr. Brock been stable enough to obtain a bone marrow
biopsy, that the cause of his pancytopenia would have been found. Vol. 2, 200:1-22. It is
Dr. Schweiger’s opinion that Mr. Brock would have been diagnosed with non-Hodgkin’s

13 The court notes that many of the signs Dr. Mehta relied upon to determine Mr. Brock had an
infection upon admittance to Shands are consistent with the signs that Mr. Brock would exhibit
had he been infected once admitted to Shands due to his low white blood cell count.
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lymphoma as that specific type of hematological malignancy is consistent with Mr. Brock’s
signs and symptoms over the course of March 2019. Vol. 2, 232:15-234:13. Based on that
diagnosis, Dr. Schweiger testified that within a reasonable degree of medical probability
chemotherapy would have assisted Mr. Brock and that he would have survived for more
than two decades. Id. at 223:16-22, 232:15-234:13.
88. Dr. Schweiger testified that had a CBC been performed on March 21, 2019, it would have
shown the presence of pancytopenia, Vol. 2, 225:12-19. Based on his experience, Dr.
Schweiger testified that Mr. Brock’s pancytopenia was so extensive that it must have
developed over a series of days or weeks. Vol. 2, 200:23-201:19. Had the pancytopenia
been found on March 21, 2019, Mr. Brock would have been admitted to the hospital to
undergo neutropenic precautions and he would have been healthy enough to undergo
sufficient testing and treatment to survive. Id. at 201:20-202:15.
g. Dr. Duncan’s opinions as to indicators of pancytopenia on March 21, 2019
89. Dr. Duncan testified that had a CBC been performed on March 21, 2019, it “would have
absolutely shown pancytopenia.” Vol. 2, 82:19-20. Dr. Duncan explained that Mr. Brock’s
continued febrile illness and symptomology over the eighteen days were consistent with
pancytopenia, and testified that it is possible for a patient to have normal vital signs and be
sick with pancytopenia or anemia. Id, at 82:13-83:9. Specifically, Dr. Duncan testified
that Mr. Brock consistently had the signs and symptoms of blood cancer, including five of
the seven early warning signs!‘ throughout March 2019. Id. at 84:1-85:10. Finally, Dr.
Duncan explained that both cancer, and pancytopenia, do not develop overnight and

'4 The five early warning signs listed in court were night sweats, fever and chills, fatigue,
headaches, and shortness of breath. Vol. 2, 84:17-85:10.
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accordingly there must have been evidence of pancytopenia on March 21, 2019. Id. at
109:19-110:22.
90. Dr. Duncan further testified that it was the delay in diagnosis, stabilization, and treatment
of Mr. Brock’s pancytopenia that caused his death. Vol. 2, 135:6-136:22. Accordingly,
Dr. Duncan testified that had Mr. Brock been diagnosed earlier, he would not have died
from the pancytopenia. Id. at 89:2-9, 131:13-132:9, 139:15-140:8. Additionally, it is Dr.
Duncan’s opinion that more likely than not, Mr. Brock would have survived. Id. Mr.
Brock would have been put on chemotherapy and that lymphomatous diseases usually
respond well to treatment. Id, at 85:21-86:11, 120:12-121:2. This was Dr. Hew’s treatment
plan and would have happened had Mr. Brock been sufficiently stable, thus, considering
Mr. Brock’s normal vitals on March 21, 2019, it is highly likely he would have been able
to receive this treatment if administered earlier. Id. 86:12-87:12, 103:14-104:1.
91. Anecdotally, consistent with Dr. Duncan’s testimony as a whole, Dr. Duncan testified to
his personal experience with lymphoma and pancytopenia, which he was diagnosed with
twenty-nine years prior to trial. Vol. 2, 87:19-89:11. Nonetheless, the court would reach
the same conclusions without it.
h. Dr. Mehta’s opinions as to indicators of pancytopenia on March 21, 2019
92. Dr. Mehta testified that if Mr. Brock had severe pancytopenia on March 21, 2019, there
would have been objective physical findings in Mr. Brock’s vital signs reflecting that
condition. Vol. 3, 41:12-43:14. Dr. Mehta admitted, however, that a CBC may have shown
a mild pancytopenia on March 21, 2019. Id. at 115:20-25.

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93. Dr. Mehta testified that had the CBC shown mild pancytopenia on March 21, 2019, Mr.
Brock would not have gone down an acute diagnostic road with emergent care as his issues
would not have been severe enough. Id. at 116:1-117:1.
94. Dr. Mehta admitted that a patient with pancytopenia who has been diagnosed, treated, and
stabilized, who was then found to have an underlying blood cancer, can live a long life so
long as the cancer is treated. Vol. 3, 181:23-182:3. Additionally, Dr. Mehta admitted that
according to his employer, MD Anderson, the survival rate for non-Hodgkin’s lymphoma
is 83% if confined to a single region and greater than 60% even at its most advanced stages.
Id. at 182:4-19.
95. Dr. Mehta admitted that Mr. Brock needed the transfusion, that it was given “more quickly
than normal,” and that “his death came . . . because of the transfusion.” Vol. 3, 98:10-
100:12.
i. More likely than not, Mr. Brock would have survived if he had received a CBC on
March 21, 2019
96. In consideration of Dr. Mehta’s expertise in oncology and hematology, compared against
Dr. Schweiger’s expertise in critical care medicine and Dr. Duncan’s expertise in clinical
pathology, the court reject’s Dr. Mehta’s opinion that had Mr. Brock been diagnosed with
mild pancytopenia on March 21, 2019, he would not have gone down an acute diagnostic
road. Supra Finding 93. Instead, the court accepts the opinions of Dr. Schweiger and Dr.
Duncan that Mr. Brock would have received the treatment necessary to stabilize his
pancytopenia and identify the source. Supra Findings 88, 90.

97. The court finds that Dr. Schweiger’s and Dr. Duncan’s opinions were reasonable and
consistent, and that the opinions are supported by the admissions of Dr. Mehta.

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Accordingly, the court therefore accepts and incorporates all opinions listed supra Findings
85-90 as to causation.
98. In particular, the court finds that the testimony of all three causation experts clearly
establishes that had a CBC been ordered on March 21, 2019, it would have identified
elements of pancytopenia. Vol. 2, 82:15-20, 201:20-202:1; Vol. 3, 115:20-25.
99. Further, the court finds that more likely than not, had these elements been discovered on
March 21, 2019, Mr. Brock would have been able to receive treatment and live a life
unaltered by the underlying condition causing his pancytopenia.'°
V. Damages
a. Economic Damages
100. Plaintiff presented Bernard Pettingill, Jr., Ph.D. as her expert on economic damages. Dr.
Pettingill is an economist who specializes in medical and health economics. Vol. 1, 155:8-
157:15. Dr. Pettingill has an undergraduate degree in economics, a Master of Business
Administration with an emphasis in Economics, a Master of Public Health, and a Doctorate
in Health Economics and Medical Economics. Id. Dr. Pettingill testified that he regularly
performs economic loss evaluation and estimated that he testifies monthly at trial. Id. The
court accepts Dr. Pettingill as a Rule 702 expert witness in economics. Id. at 174:25-175:4.

'5 The government argues that Mr. Brock’s failure to have his blood drawn for the CMP indicates
that Mr. Brock would not have completed the CBC. Def.’s Proposed Findings of Fact and
Conclusions of Law at 62, ECF No. 75 (Oct. 27, 2023) (“Gov. Br.”). The court disagrees.
Considering ARNP Elgin’s testimony that the CMP was not related to the diagnostic evaluation
of Mr. Brock, Elgin Tr., 137:19-21, that Mr. Brock had had similar wellness tests previously, Jt.
Ex. 5, NHJ_0257, that there is no indication that ARNP Elgin told Mr. Brock to get the wellness
test done the same day, Jt. Ex. 5, NHJ_0254—57, and that Mr. Brock sought diagnostic blood work,
id., it seems clear that Mr. Brock would have had his blood drawn had ARNP Elgin ordered a
CBC and educated Mr. Brock on the importance of having the diagnostic testing done
immediately.
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101, Mr. Brock was employed by the U.S. Post Office, was in good standing, earned $18.00
an hour and worked roughly 40 hours a week. Vol. 1, 177:3-7. Dr. Pettingill, after
reviewing Mr. Brock’s recent work history, tax returns, and wage statement, estimated that
Mr. Brock earned approximately $37,640.00 per year. Vol. 1, 162:17-163:2. This amount,
Dr. Pettingill testified, would need to be reduced for tax and an additional 32% to
compensate for Mr. Brock’s personal consumption. Vol. 1, 178:9-12.
102. Dr. Pettingill included an additional 9% for “fringe benefits” which he described as
vacation time, sick leave, holidays, and personal time. Vol. 1, 186:24-189:13; Jt. Ex. 12,
USPS_0008-14.
103. Mrs. Brock and Mrs. Stepalavich testified to Mr. Brock’s other duties such as working
around the house, fixing things, cooking, painting, cleaning, and driving Mrs. Brock when
she needed to leave the house. Vol. 1, 226:2-8, 235:15-236:19, 261:25-264:25, Based on
a “Checklist for Economic Evaluation” that Mrs. Brock completed, Dr. Pettingill estimated
that Mr. Brock’s death caused a loss of twenty-two hours per week of household services.
Vol. 1, 165:12-167:10; Pl.’s Ex. 21, ECF No. 65-3 (July 31, 2023) (“PI.’s Ex. 21”). Dr.
Pettingill valued those services at minimum wage, or $12.00 an hour, which he testified is
a conservative number consistent with the standard economic methodology for the
replacement value of household services. Vol. 1, 165:12-167:10.
104. Dr. Pettingill testified that based on life expectancy and work life expectancy charts he
reviewed, he estimated Mr. Brock would have continued working until sixty-seven and
then died around the age of eighty-two. Vol. 1, 160:19-162:5; Pl.’s Ex. 21.
105. Dr. Pettingill testified that based on these conclusions, to compensate Mrs. Brock for the
economic loss of her husband, she would need $49,913 for past loss of household services,

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$122,127 for past loss of support, $308,354 present value for future loss of household
services, and $210,176 present value for future loss of support. Vol. 1, 170:3-171:13.
106. On cross-examination, the government raised several issues. First, that Dr. Pettingill had
insufficient tax records and data to determine Mr. Brock’s wages and loss. Vol. 1, 176:22-
177:7. The court finds this concern meritless as Dr. Pettingill’s estimates appear consistent
with what would be expected for a postal office worker in good standing. Second, that Dr.
Pettingill failed to properly deduct tax and consumption figures from his calculations. Id.,
Vol. 1, 183:8-186:16. Upon review of Dr. Pettingill’s report, the court finds the 30% Dr.
Pettingill testified to deducting was in fact deducted. Third, that Dr. Pettingill should not
have included fringe benefits. Vol. 1, 186:24-189:13. The court finds that 9% is a
reasonable amount to include for benefits Mr. Brock received that were not reflected in his
paycheck. Fourth, that twenty-two hours a week in household services is not supported by
the record. Vol. 1, 190:8-193:13. The court finds the record to reflect Mr. Brock provided
14 hours a week in household services in addition to those performed by Mrs. Brock rather
than 22 hours a week as Mrs. Brock was not entirely reliant on Mr. Brock for local
transportation and previously shared household chores. Finally, the government
questioned Dr. Pettingill on prior limitations placed on his testimony by prior courts. Vol.
1, 205:14-212:17. The court finds that Dr. Pettingill’s explanations were reasonable and
that those prior cases are distinguishable from the case at hand and do not impact the court’s
interpretation of Dr. Pettingill’s economic loss report or testimony.
107. Except as indicated, the court finds that Dr. Pettingill’s opinions were reasonable and
consistent. Accordingly, the court therefore accepts and incorporates all opinions listed
supra Findings 100-106, except as specifically indicated, as to economic damages.

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108. The court finds that the Estate of Richard Brock and Joy Brock have suffered a present
value economic loss of $560,291, comprised of $31,763 for past loss of household services,
$122,127 for past loss of support, $196,225 present value for future loss of household
services, and $210,176 present value for future loss of support.
a. Non-Economic Damages
109. Mrs. Stepalavich testified that Mr. and Mrs, Brock had an extremely strong and happy
marriage. Vol. 1, 226:23-236:19.
110. Mrs. Brock testified to her distress after Mr. Brock’s death, the loss of the house they
purchased together, and her adjustments in the intervening years. Vol. 1, 260:5-261:24,
272:15-278:21.
111. The court finds that Mrs. Brock incurred non-economic damages due to loss of
companionship, and that Mrs. Brock suffered significant mental pain and anguish.
112. The court finds non-economic damages in the amount of $500,000 is fair and adequate to
compensate Mrs. Brock, as surviving spouse of Mr. Brock, for her past non-economic
damages.
113. The court finds non-economic damages in the amount of $1,000,000 is fair and adequate
to compensate Mrs. Brock, as surviving spouse of Mr. Brock, for her future non-economic
damages.
CONCLUSIONS OF LAW
114. The findings of fact set forth above clearly dictate the outcome of this case. As explained
at the outset, in comparison to the facts, the law in this case is straightforward. First, the
court must determine the standard of care applicable in this case. Supra APPLICABLE
LAW § I. Then, the court must decide whether, based on her care of Mr. Brock, ARNP

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Elgin breached the standard of care. Id. Finally, if a breach occurred, the court must decide
whether that breach proximately caused Mr. Brock’s injuries. Id. The plaintiff bears the
burden of establishing all three of these elements by a more likely than not standard, Prieto
v. Total Renal Care. Inc., 843 F. App’x 218, 224 (1 [th Cir. 2021).
I. Standard of Care
115. In medical malpractice actions, the plaintiff:
shall have the burden of proving by the greater weight of evidence that the
alleged actions of the health care provider represented a breach of the
prevailing professional standard of care for that health care provider. The
prevailing professional standard of care for a given health care provider
shall be that level of care, skill, and treatment which, in light of all relevant
surrounding circumstances, is recognized as acceptable and appropriate by
reasonably prudent similar health care providers.
Fla. Stat. § 766.102(1). Specifically, the “failure of a health care provider to order, perform,
or administer supplemental diagnostic tests shall not be actionable if the health care
provider acted in good faith and with due regard for the prevailing professional standard of
care.” Fla. Stat. § 766.102(4).
116. The government argues that the court should analyze whether ARNP Elgin breached the
standard of care in the context of her diagnosis of Mr. Brock with a URI. Gov. Br. at 32.
Additionally, the government argues that Dr. Vasquez established that the standard of care
does not require clinicians to order any diagnostic testing for patients with a suspected URI.
Gov. Br. at 38.
117. The court disagrees, however, that the standard of care should be predicated upon the
diagnosis of a URI. The actions of a health care provider are evaluated based on “all
relevant surrounding circumstances,” not purely within the context of the diagnosis
determined by the provider in question. Fla. Stat. § 766.102(1). Thus, Dr. Vasquez’s

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testimony and the government’s arguments about what is or is not reasonable within the
context of a URI diagnosis are not relevant; rather, the court considers what the standard
of care would require of a provider considering a patient like Mr. Brock.
118, The court concludes that the standard of care requires a provider, presented with the
information available to ARNP Elgin on March 21, 2019, to order diagnostic testing that
includes a CBC when evaluating a patient presenting with Mr. Brock’s symptoms and
treatment history.!®
II. Breach
119. It is undisputed that ARNP Elgin did not order a CBC for Mr. Brock on March 21, 2019.
See supra Findings 24, 26. Ergo, the court concludes that ARNP Elgin breached the
standard of care by failing to order a CBC.
III. Proximate Cause
120. The testimony of all three causation experts established that had a CBC been taken on
March 21, 2019, it would have shown signs of pancytopenia. See supra Finding 98.
Accordingly, the question before the court is had those signs been found on March 21,
2019, would Mr. Brock have been treated and survived.!”

'6 The parties contest what may or may not have happened during the visit on March 21, 2019.
Gov. Br. at 7-19; Brock Br. at 9-12, 153. The court finds, however, that because ARNP Elgin
does not remember Mr. Brock’s visit, the medical record is the dispositive source for
determining what information ARNP Elgin had on March 21, 2019, and what she did. Elgin Tr.
88:2-25. The question of what a provider with additional information might do is not before the
court and is not reached.
'7 In prior briefing before the court, the government argued that the “stacking of inferences” is
prohibited. Defs.’ Mot. for Summ. J. at 6-9, ECF No. 26 (Dec. 22, 2022). The Eleventh Circuit
has clearly stated that it does “not apply state-law rules against ‘pyramiding’ or ‘stacking’
inferences.” Berbridge v. Sam’s East, Inc., 728 Fed. Appx. 929, 932 (11th Cir. 2019) (citing
Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1326 (11th Cir. 1982)). Nevertheless,
here, the court does not reach this legal question as no stacking is required. The standard of care
was breached, and Mr. Brock died of a disease that more likely than not would have been
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121. The experts from each side offered conflicting opinions as to whether Mr. Brock would
have survived had ARNP Elgin ordered a CBC on March 21, 2019. The court, however,
is free to accept an expert witness opinion, reject it, or give it the weight the court thinks it
deserves, considering the knowledge, skill, experience, training, or education of the
witness, the reasons given by the witness, and all the other evidence in the case.
122. Here, the court accepted Dr. Schweiger’s and Dr. Duncan’s opinions as to a potential
treatment plan and survival due in large part to the consistency of their testimony and
relative expertise. Supra Findings 56-69. Conversely, the court rejected Dr. Mehta’s
opinions on a treatment plan due in part to the inconsistencies in his testimony. Supra
Findings 81-83, 92-94. Additionally, Dr. Mehta did not provide an opinion as to whether
Mr. Brock could have survived a hematological malignancy had treatment begun on March
21,2019. See generally, Vol. 3, 168:17-197:6.
123. Accordingly, the court concludes that the evidence supports that more likely than not, had
a CBC been ordered on March 21, 2019, Mr. Brock would have survived. Ergo, ARNP’s
breach was the proximate cause of Mr. Brock’s injuries.
IV. No Comparative Negligence by Mr. Brock
124. At trial, the defendant confirmed that it was not claiming comparative negligence by Mr.
Brock. Vol. 4, 166:5-167:7. Without affirmatively pleading that some or all responsibility

diagnosed and successfully treated if the breach had not occurred. The only matter then seems to
the court to be debatable is what disease Mr. Brock actually had. But the defendant’s witness on
this point was so deficient that the weight of the testimony favors plaintiff's view of the disease
and likely outcome if properly diagnosed. Dr. Mehta is an oncologist, not an expert in infectious
diseases, and was thus ill equipped to support the theory that Mr. Brock’s pancytopenia was
caused by some unknown infectious disease not identified by the infectious disease specialists at
Shands. Additionally, Dr. Mehta’s testimony only briefly addressed the possibility of a
hematological malignancy and was insufficient to overcome the testimony of both Dr. Schweiger
and Dr. Duncan.
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lies with Mr. Brock or a nonparty, the court concludes that all damages should be
apportioned to the United States. Accordingly, the court hereby grants Plaintiff's Rule 52
motion to dismiss Defendant’s Eighth Affirmative defense of contributory negligence.
V. Damages allowable under Florida law
125. The Florida Wrongful Death Act dictates that each survivor of the decedent may be
awarded an amount of money that the greater weight of evidence shows will fairly and
adequately compensate the survivor for lost support and services from the date of the
decedent’s injury to his death, with interest, and future loss of support and services from
the date of death and reduced to present value. Fla. Stat. § 768.21(1) (2020).
126. The decedent’s personal representative may recover for the decedent’s estate the
decedent’s loss of earnings, decreased from the date of injury to the date of death, and the
loss of prospective net accumulations of the estate, reduced to present money value.
Fla. Stat. § 768.21(6)(a) (2020).
127. The surviving spouse may also recover for loss of the decedent’s companionship and
protection for mental pain and suffering from the date of injury. Fla. Stat. §
768.21(2) (2020).
CONCLUSION
The court concludes that the plaintiff has met its burden to prove the elements of medical
malpractice under the Federal Tort Claims Act, and in accordance with the foregoing findings of
fact and conclusions of law, it is hereby
ORDERED that judgment shall be entered in favor of the plaintiff and against the United
States in the above matter in the amount of $2,060,291 to Joy Brock, as personal representative of

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the Estate of Richard Brock. The Clerk is directed to terminate any pending motions and deadlines,
and to close the file.

/s/ Jane A. Restani
Jane A. Restani, Judge
Dated: January 25, 2024
New York, New York

42

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10115098. Public record. Not legal advice.