In its 4-to-3 decision filed on March 22, 2018, the Supreme Court of Florida (“Florida Supreme Court”) affirmed the final judgment in the amount of $4,101,476 in favor of the Florida medical malpractice plaintiffs. The lower appellate court had affirmed the trial court’s denial of the defendant’s motion for directed verdict, but reversed and remanded for a new trial based on the plaintiffs’ violation of the one expert per specialty rule and for materially misrepresenting evidence in closing arguments.
The defendant pediatrician was the primary care physician for the plaintiffs’ child from shortly after her birth in August 2000 until she was six years old. The child’s parents claimed that during that time, the defendant negligently failed to diagnose the child with a chronic kidney disease known as C1q nephropathy, which severely damaged the child’s kidneys and forced her to undergo a kidney transplant in May 2007. The defense argued that the child suffered not from C1q nephropathy but from membranoproliferative glomerulonephritis (MPGN), an acute kidney disease which could not have been diagnosed sooner.
The trial court had entered a uniform order providing “[e]ach party is limited to one (1) retained expert per specialty. No other expert testimony shall be permitted at trial.” The defendant argued on appeal that he was entitled to a new trial on liability because the trial court had erroneously allowed the plaintiffs to present testimony from multiple expert witnesses in the same area of specialty in violation of the pretrial order, as well as other alleged errors.
During the Florida medical malpractice trial, the plaintiffs were allowed to offer the testimony from four pathologists, each of whom testified that the child suffered from C1q nephropathy and gave an opinion as to the timing of the disease’s progression. The lower appellate court held the trial court abused its discretion by failing to enforce its pretrial order, and granted a new trial “because the plaintiffs were able to call four expert pathologists . . . and each pathologist was permitted to give his opinion on the nature and duration of [the child’s] illness, which unfairly prejudiced [the defendant], who was limited to only one pathology expert on that subject.”
Treating Physician Rule
Testimony given by treating physicians blurs the boundary between fact testimony and expert testimony because treating physicians and expert medical witnesses both possess scientific, technical, or other specialized knowledge which informs their testimony. § 90.702, Fla. Stat. (2017). Because of this specialized knowledge, an expert is permitted to render an otherwise impermissible opinion about the evidence where such an opinion is helpful to the jury.
While an expert witness assists the jury to understand the facts, a treating physician testifies as a fact witness concerning his or her own medical performance on a particular occasion and is not opining about the medical performance of another. This necessarily involves testifying with regard to the exercise of the treating physician’s specialized medical knowledge as applied to other facts of the case, namely the plaintiff’s symptoms.
A treating physician is a fact witness, and testifies to past facts based on personal knowledge. Those facts involve a technical matter about which the jury lacks basic knowledge, but they are facts nonetheless. The treating physician’s perception of the plaintiff’s symptoms, their diagnostic opinion, and their recommendation of a particular treatment are all facts in issue.
An expert witness testifies with the benefit of hindsight, whereas a treating physician does not.
Treating physicians are limited to their medical opinions as they existed at the time they were treating the plaintiff, while an expert may form new opinions in order to help the trier of fact decide the case. Although a treating physician may possess the same qualifications as an expert witness, treating physicians form medical opinions in the course of rendering treatment and may therefore testify to the fact that they formed those opinions, and explain why they did so, provided such testimony is otherwise admissible.
A witness’s ability to testify as a treating physician is predicated on the witness’s having provided the plaintiff with the medical treatment which is the subject of the witness’s testimony. However, if a treating physician testified to a medical opinion formed for the purpose of litigation rather than treatment, then the mere fact that the physician once treated the plaintiff would not prevent that doctor from being considered an expert witness.
The Florida Supreme Court stated that a physician becomes a “treating physician” when the physician participates in treatment: that is, when the physician applies medical knowledge and judgment to render care or assist with care. The concept of “treatment” in modern medicine is very broad. Patients with complex or long-term medical problems may be treated by teams composed of several physicians, each with a different specialty, all of whom play an essential role in the patient’s care.
Pathologists are such specialists. A pathologist studies all aspects of disease, but with special reference to the essential nature, causes, and development of abnormal conditions, as well as the structural and functional changes that result from the disease processes. Even though a pathologist may never see the patient in person, they may still be liable for medical malpractice committed against that patient.
Fact Testimony vs. Expert Testimony
The Florida Supreme Court stated that if the treating physician gives a medical opinion formed during the course and scope of treatment in fulfillment of their obligation as a physician, then the physician is a fact witness, albeit a highly qualified one. If, however, the treating physician gives an opinion formed based on later review of medical records for the purpose of assisting a jury to evaluate the facts in controversy, the physician acts as an expert witness, and should be considered as such.
In the case it was deciding, the Florida Supreme Court held that two of the pathologists testified to the facts of their participation in the child’s treatment, which necessarily included their diagnostic reasoning and conclusions. Therefore, they were fact witnesses rather than additional expert witnesses.
Source Gutierrez v. Vargas, No. SC15-1924.
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