In its opinion filed on January 20, 2017, the District Court of Appeal of the State of Florida Fifth District (“Appellate Court”) overturned a medical malpractice jury’s verdict in favor of the plaintiff, finding that the plaintiff had wrongfully failed to disclose certain opinions of her experts that were presented during the medical malpractice trial, and that the trial court had erroneously refused to admit an emergency room physician’s deposition transcript for the jury’s consideration.
The Underlying Facts
On December 4, 2009, the decedent visited a family practice clinic, complaining of ear pain that had persisted for two weeks. A physician diagnosed the decedent as suffering from bilateral otitis media (a middle ear infection) and “sinusitis chronic with obstruction,” for which the physician wrote two prescriptions for Z-Pak antibiotics, and told the decedent to follow-up in two weeks.
On December 18, 2009, the decedent returned to the clinic and was seen by the defendant board-certified family physician, complaining of chronic ear problems that persisted for one month (the defendant failed to document that any ear exam took place, although the defendant physician later testified that it “usually would be within my standard to check into the ears.”) The defendant physician recommended that the decedent take a Medrol Dosepak, a steroid, to aid his mild sinusitis and the defendant provided the decedent with samples of Levaquin, an antibiotic, as a precaution in case the decedent’s sinusitis worsened over the Christmas holiday. The defendant instructed the decedent to follow-up in one month.
On February 25, 2010, the decedent returned to the clinic and complained of intense right ear pain. The defendant examined the decedent’s ear and found a bulging tympanic membrane (ear drum), and diagnosed the decedent with right-ear otitis media once again, noting no redness of the ear, no pus in the decedent’s ear canal, and no discharge from the ear. The defendant prescribed the decedent another Z-pak and pain medication but did not refer the decedent to an ear, nose, and throat specialist for further evaluation.
On February 26, 2010, the decedent visited an ENT practice, where he was seen by a physician assistant (“PA”). The decedent advised the PA of a four-month history of a clogged right ear with muffled hearing. The PA documented that the decedent had pus in the right ear, fluid behind his eardrum, as well as redness of the eardrum, and diagnosed the decedent with a middle and outer ear infection. The PA advised the decedent to finish the current Z-pak and Medrol Dospak, and prescribed Ciprodex with an instruction to follow-up in ten days. The PA did not note, however, any signs of sinusitis.
Early on February 27, 2010, the decedent collapsed at his home and was taken to a local hospital where a CT scan of his brain revealed “effacement of the cerebral hemispheric sulci as well as the basilar cisterns, concerning for cerebral edema.” The CT final report also noted, “Bone detail shows opacification of the right mastoid sinus and right middle ear” and bilateral ethmoid sinus disease (sinusitis). Following the decedent’s admission to the hospital, a tube was surgically placed in the decedent’s ear to relieve fluid buildup in the ear and a culture of the fluid found in the decedent’s ear revealed strep pneumonia, a bacteria likely resistant to Z-Pak antibiotics. Subsequent to his hospital admission, the decedent stopped breathing and was placed on a ventilator and died on March 2, 2010 from meningitis.
The personal representative of the decedent’s estate filed a Florida medical malpractice lawsuit against the clinic family practice physician. The plaintiff’s medical experts opined that the defendant breached her duty of care at the December 18, 2009 visit by: (a) misdiagnosing the decedent’s condition; (b) failing to take a complete history from the decedent; (c) failing to perform a proper physical exam of the decedent; (d) failing to culture the decedent’s ears to determine the type of germ he had; (e) failing to treat his ear infection; (f) failing to perform bloodwork; (g) failing to order imaging studies; and (h) failing to send the decedent to an ENT or the emergency room.
The plaintiff’s medical experts further opined that at the February 25, 2010 visit, the defendant breached her duty of care in: (a) failing to do a culture; (b) failing to order lab work and imaging studies; (c) failing to refer the decedent to the emergency room; and (d) prescribing drugs that had already been proven ineffective for the decedent. However, neither of the plaintiff’s experts opined that the defendant had breached her duty of care by providing Levaquin samples to the decedent.
Prior to the April 2015 medical malpractice jury trial, the plaintiff failed to disclose to the defendants her intent to present evidence that the defendant’s decision to provide Levaquin to the decedent constituted a breach of her duty of care. During the plaintiff’s opening statement, her medical malpractice lawyer told the jury that Levaquin was not an FDA-approved drug for the treatment of ear infection and that the defendant should not have given samples of the drug to the decedent, to which the defendant objected because there had been no pretrial expert testimony regarding Levaquin and testimony regarding same would constitute an “unfair surprise” and “a new opinion,” but the trial court overruled the defendant’s objection.
The defendant’s medical malpractice attorney also objected to the plaintiff’s medical experts testifying that the defendant breached her duty by providing the decedent with Levaquin, which the trial court overruled.
The Florida medical malpractice jury returned its verdict in favor of the plaintiff, and the defendant appealed.
The Appellate Court stated, “We agree and conclude that the trial court erred in permitting [the plaintiff] to argue and present evidence that [the defendant] breached her duty of care by providing Levaquin samples to Decedent and further erred by allowing the Levaquin package insert to be admitted into evidence.” The Appellate Court stated that the defendant was prejudiced by the surprise testimony and evidence presented at trial regarding Levaquin: the plaintiff first disclosed her intent to present evidence that the defendant’s provision of Levaquin samples to the decedent constituted a breach of a duty of care during counsel’s opening statement at trial. As a result, the defendant was denied the opportunity to conduct discovery on whether the decedent actually used the Levaquin and, if so, the amount used, and whether such use would have adversely affected the decedent. Additionally, the defendant was denied the opportunity to discover whether the package insert introduced at trial was authentic (the Levaquin given by the defendant was manufactured by Johnson and Johnson, yet the package insert shown to the jury was from manufacturer Janssen Ortho, LLC). Furthermore, although the defendant testified that she gave the Levaquin to treat sinusitis rather than an ear infection, her experts were deprived of the opportunity to fully respond to the claim that Levaquin samples should not have been provided to the decedent.
The Appellate Court further stated that the trial court’s error was compounded by permitting the insert to be admitted into evidence (even assuming its authenticity). Although section 90.706, Florida Statutes (2014), permits statements of facts or opinion on a subject of specialized knowledge contained in a learned treatise, pamphlet, or other writing to be used in cross-examination of an expert witness, it does not permit those statements to be used as substantive evidence. The rationale for this rule is an opposing party otherwise would be deprived of the opportunity to cross-examine or impeach the source of the statement of fact or opinion.
The Appellate Court therefore reversed and remanded the case for a new trial.
Source Doctors Company v. Plummer, Case No. 5D15-1963.
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