Judge Stephen Pitre wants to see for himself that publicity surrounding legal actions taken against Gulf Breeze plastic surgeon Dr. Ben Brown have tainted Escambia County residents to the extent Brown could not receive a fair hearing in a pending medical malpractice trial.
Pitre ruled Sept. 12 against a motion put forward by Brown attorney Michael Kehoe to have a lawsuit filed against Brown by Wendy Carden and her husband moved to a venue outside of the county.
He told Kehoe, though, that if at jury selection Dec. 1 jurors prove to have been so prejudiced by negative publicity that it would be impossible to give Brown a fair hearing, Kehoe can feel free to re-file his motion for a change of venue.
The Cardens are suing Brown, Baptist Hospital, Restore Plastic Surgery, North Florida Surgeons, North Florida Surgeons Pensacola Plastic Surgery.
The 41-count lawsuit, filed in 2022, claims that on or about Aug. 15 of 2018 Carden went in for corrective surgery related to breast reconstruction and after nine hours of operation emerged with permanent bodily injuries and suffered infections that eventually led to readmission to a hospital and corrective surgery.
It also claims that Brown used ventrio mesh patches during the surgery even though Carden had specifically requested no foreign materials to be placed in her body and refused to sign documents permitting the use of the patches.
It seeks damages in excess of $30,000.
Dr. Ben Brown also facing manslaughter charge
In a separate case, Brown also has been charged with manslaughter by culpable negligence in Santa Rosa County. Those charges stem from the death of his wife, 33-year-old Hillary Ellington Brown, in November of 2023.
Hillary Brown went into cardiac arrest a week before her death while Brown was performing several procedures on her in his office, Restore Plastic Surgery, in the Tiger Point area of Gulf Breeze. She never regained consciousness and died when her family made the difficult decision to take her off life support.
Charges state that Brown waited to call 911 after she became unresponsive in his surgical chair and held off for an estimated 10 to 20 minutes before initiating CPR.
The Sheriff’s Office also said Brown did not have life-saving equipment available in his office when Hillary’s heart stopped and that he failed to follow medical protocol when administering sedatives, like lidocaine, which ultimately lead to her death.
Brown has pleaded not guilty to all charges and also maintains his innocence from culpability in the civil lawsuit filed against him.
The motion for change of venue, filed June 5, states Brown has been subject to a wide range of media coverage including that from newspapers, internet sites, posts and videos and ads and attacks from opposing legal counsel.
Prejudicial criticism has also come from former patients, employees and in-laws following the death of Hilary Brown on Nov. 21, 2023, the motion states.
Brown has been accused not only with causing his wife’s death, but of multiple malpractices, the motion states and media coverage veered from being passive into “attack pieces” that have been consumed by a much wider audience over an extended period of time.
“Dr. Brown has already been tried and adjudicated in various sources of media on several claims from homicide to multiple counts of medical malpractice,” the motion said.
Pressed by Pitre from the onset of the change of venue hearing, Kehoe said that in 35 years of legal practice he had never filed a motion seeking to move a trial. Asked by the judge where he would relocate the trial to if his motion was granted, Kehoe suggested Walton County.
Attorneys for the Cardens argued in a motion of their own that the court has within its discretion the ability to wait until the jury selection process gets underway to determine whether an impartial jury can be found.
It argues Brown’s motion cites publications such as the USA TODAY NETWORK that have state and even national reach, and that no evidence exists to state an Escambia County jury would have been subject to greater exposure than a Walton or Leon County court.
“Thus without a court actually attempting to seat a jury the defendant’s argument of adverse publicity has an almost endless reach,” the motion, filed by attorneys for the law firm of Michles and Booth, said.
After Pitre issued his ruling Kehoe, noting the presence of reporters at the motion hearing, appeared on the verge of requesting that some type of gag order be put in place to stifle further publicity.
“I’m not getting into unsworn depositions in the middle of a meeting,” Pitre said.
What’s next for Dr. Ben Brown?
The next step in the medical malpractice case will be a court ordered mediation hearing on Oct. 9. A trial date has been tentatively set for Dec. 1.
A hearing in Brown’s manslaughter case is scheduled for Oct. 14.
The Florida Department of Health, which in May issued a emergency order immediately restricting Brown’s license, has set aside three days beginning Sept. 16 for disciplinary hearings in Pensacola.
Initial agency findings that led to his being placed on restriction state that Brown violated several state statutes and exhibited behavior that falls below the minimum standard of medical care.
The findings state Brown failed to keep complete and accurate medical records, performed unauthorized procedures, and allowed an unlicensed person to practice medicine.
He faces sanctions that include permanent revocation or suspension of his license, continued restriction of his practice, reprimands, probation or an administrative fine.
This article originally appeared on Pensacola News Journal: Plastic surgeon Ben Brown denied change of venue in medical malpractice lawsuit
Reporting by Tom McLaughlin, Pensacola News Journal / Pensacola News Journal
USA TODAY Network via Reuters Connect
