Florida’s Fourth District Court of Appeal Examines Limits of Recent Florida Supreme Court Decision

In a recent decision, Saunders v. Dickens, 151 So. 3d 434 (Fla. 2014), the Supreme Court of Florida ruled that in a medical negligence action, “a physician cannot insulate himself . . . from liability . . . by presenting a subsequent treating physician who testifies that adequate care by the defendant physician would not have altered the subsequent care.” Prior to the Supreme Court’s repudiation of this type of testimony, trial courts typically permitted experts to opine about this issue, leaving the propriety of numerous medical malpractice decisions in dispute. Indeed, the Fourth District Court of Appeal was recently tasked with addressing this issue in Cantore ex rel. Felix v. West Boca Med. Ctr., Inc., in which the court needed to determine whether a trial court’s admission of a subsequent treating physician’s testimony required a new trial.

Cantore arises from an adverse jury verdict in a medical malpractice case brought by the parents of a minor against West Boca Medical Center and Variety Children’s Hospital (a.k.a. Miami Children’s Hospital). Two years prior to the incidents at the heart of this case, the minor was diagnosed with hydrocephalus, which is a condition characterized by the excessive buildup of cerebral spinal fluid in the cranium. The minor’s case of hydrocephalus was caused by a benign tumor that blocked the outflow of fluid from her cranium. At that time, the minor underwent a procedure to correct the blockage. However, scar tissue began to develop and was uncovered by a CT scan performed about two years later at West Boca, showing that spinal fluid had begun to accumulate again. A doctor at Miami Children’s scheduled the minor for another corrective procedure.

About three weeks prior to this scheduled procedure, the minor began to experience painful headaches. The parents went to West Boca, where the minor was triaged as “urgent,” the middle of three triage levels. A physician gave the minor a diagnostic assessment, and a CT scan was performed. After reviewing the CT scan, a physician determined the hydrocephalus was worsening and contacted Miami Children about having her transferred. At the time, the physician told the pediatric neurosurgeon at Miami Children that the minor was “stable.” After some delay, the minor was airlifted to Miami Children. During the flight, the minor experienced acute decompensation. By the time of arrival, the minor had suffered a brain herniation and was rushed to the emergency room at Miami Children. An emergency procedure to relieve pressure was performed, which saved the minor’s life. However, the minor nevertheless experienced permanent brain damage.

The minor’s parents brought suit against West Boca and Miami Children’s. At a deposition, a physician at Miami Children’s was asked how his treatment would have differed had the minor arrived at the hospital an hour or two earlier. The physician testified that his treatment would not have been altered by the prior sequence of events because the procedure would still have been arranged for a time considering her condition two hours earlier. Accordingly, the minor would have still decompensated and experienced herniation leading to permanent injury. This deposition was read to the jury during trial. On appeal, the parents argued that this hypothetical testimony ran afoul of the Supreme Court’s ruling in Saunders and thus required a new trial.

In finding that such testimony lacks probative value, the Supreme Court of Florida noted that “[i]t . . . place[s] a burden on the plaintiff to somehow prove causation by demonstrating that a subsequent treating physician would not have disregarded the correct diagnosis . . . , contrary to his or her testimony and irrespective of the standard of care for the [first] physician.” Saunders, 151 So. 3d at 442. Although the Fourth District accepted the Supreme Court’s reasoning on the issue, it determined that the facts presented in the current case were distinguishable. Here, the Fourth District found that the deposition testimony was not of a “subsequently treating physician” but rather of a “co-treating physician” or “consulting treating physician.” Indeed, the physician testifying had been in conversation with the physician at West Boca about the minor’s care. The Fourth District found this distinction meaningful because it made the testifying physician’s answers more probative, since they addressed the care being received by the minor at the time she was under the care of the first physician. The Fourth District reasoned that since the instruction of the Miami Children’s physician had a direct bearing on the West Boca physician’s actions, the testimony was not of the variety repudiated in Saunders. Accordingly, the Fourth District determined the trial court did not err in admitting this testimony, and therefore a new trial was not necessary.

This case is just one that will likely come before the Courts of Appeal in the coming months and years. Given the primacy of expert testimony in medical negligence cases, controlling the testimony that makes its way to the ears of the jury is of obvious importance. Limiting the introduction of adverse testimony is easier in the first instance than on appeal when an appeal court must make a ex-post determination about whether “harm” arose from the introduction of questionable testimony. Accordingly, anyone with a possible medical negligence claim should consider finding experienced legal representation prior to taking action to redress his or her injuries. The South Florida medical negligence attorneys at Frankl Kominsky Injury Lawyers have ample experience in Florida medical malpractice law and are ready to extend you the benefits of their services. If you are interested in learning more about a possible claim or our services, please feel free to contact us for a free case consultation.

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