A deeply-divided Supreme Court of Florida (“Florida Supreme Court”) overturned a defense verdict in a Florida medical malpractice case on April 26, 2018, holding that the trial court erred by admitting the treating physician’s deposition testimony regarding how he would have treated the teenaged patient had she arrived at one of the defendant hospitals earlier.
The Underlying Facts
When the plaintiff was twelve years old in 2006, she was diagnosed with hydrocephalus, a condition resulting from a build-up of excess cerebral spinal fluid within the cranium. Her condition resulted from a benign tumor which grew and blocked the outflow of the fluid which normally circulates around the brain.
The plaintiff had an Endoscopic Third Ventriculostomy (“ETV”) to remove the blockage, which relieved the problem without causing any permanent injury, but scar tissue began to develop. A CT scan showed fluid starting to accumulate around the plaintiff’s brain again, and MRIs in March and June 2008 confirmed that a blockage was occurring again. A doctor scheduled the plaintiff for an ETV on July 28, 2008.
However, on July 3, 2008, at 2:30 p.m., the plaintiff began experiencing painful headaches and vomiting. The plaintiff was brought by ambulance to a local hospital where a CT scan was ordered STAT. A radiologist read the new CT scan, compared it with the previous one from December 2007, and confirmed in a report that the plaintiff’s condition was worsening, and that the ventricles were larger than they had been on the previous CT scan, which findings were consistent with worsening hydrocephalus.
Plans were made to transfer the plaintiff to the other defendant hospital by LifeFlight due to her worsening condition, which transfer was delayed due to scheduling and technical issues. During the flight, the plaintiff suffered an acute decompensation. By the time she landed at the defendant hospital, she had suffered a brain herniation. She had an emergent ventriculostomy, in which he drilled a hole into her skull to insert a catheter, thereby relieving pressure on the brain, which saved her life; however, she suffered permanent brain damage. The plaintiff has significant mental impairment and must be fed through a tube; she will never be able to work or live independently.
The teenager and her parents filed their Florida medical malpractice lawsuit in 2010, against both hospitals, alleging that they had not provided proper medical care for the teenager on July 3, 2008. The plaintiffs presented testimony from several expert witnesses regarding the timing of the teenager’s transfer between the defendant hospitals and the care she received from the LifeFlight crew.
One of the plaintiffs’ expert witnesses, a pediatric neurosurgeon, testified that, based on his understanding of the teenager’s condition before she herniated, if she had come under his care prior to the herniation, he would have performed an emergency ventriculostomy. In the expert’s opinion, if the plaintiff had received earlier relief from the build-up of cerebrospinal fluid in her brain, the herniation could have been prevented.
Over the plaintiffs’ objection, the defense was permitted to publish to the jury the deposition of the pediatric neurosurgeon who had operated on the teenager, in which he answered hypothetical questions as to how he would have treated the teenager had she arrived at the defendant hospital an hour or two earlier. The trial court also permitted the defense pediatric emergency medicine expert to testify that the pediatric neurosurgeon’s statement as to what he would have done had the teenager arrived at the defendant hospital earlier was consistent with what other neurosurgeons would have done.
The Florida medical malpractice jury returned a defense verdict, and the plaintiffs appealed.
Florida Supreme Court Decision
The Florida Supreme Court held that the trial court abused its discretion in admitting the pediatric neurosurgeon’s deposition testimony about what he would have done had the plaintiff arrived at the defendant hospital earlier because such testimony is prohibited. The Florida Supreme Court confirmed its holding in a prior Florida Supreme Court case that testimony that a subsequent treating physician would not have treated the patient plaintiff differently had the defendant physician acted within the applicable standard of care is irrelevant and inadmissible and will not insulate a defendant physician from liability for his or her own negligence.
The Florida Supreme Court in the present case cited its explanation of its holding in the prior case: “Because the central concern in medical malpractice actions is the reasonably prudent physician standard, the issue of whether a treating physician acted in a reasonably prudent manner must be determined for each individual physician who is a defendant in a medical malpractice action. A subsequent treating physician simply may not be present at the time a defendant physician makes an allegedly negligent decision or engages in a potentially negligent act. Further, it is not only the final physician, but rather each treating physician who must act in a reasonably prudent manner. . . . To [allow testimony from a subsequent treating physician like that of the first neurosurgeon], would alter the long-established reasonably prudent physician standard where the specific conduct of an individual doctor in a specific circumstance is evaluated. It would place a burden on the plaintiff to somehow prove causation by demonstrating that a subsequent treating physician would not have disregarded the correct diagnosis or testing, contrary to his or her testimony and irrespective of the standard of care for the defendant physician. To require the plaintiff to establish a negative inappropriately adds a burden of proof that simply is not required under the negligence law of this State.”
The Florida Supreme Court stated that in the present case, the substance of the pediatric neurosurgeon’s testimony about how he would have treated the plaintiff under circumstances other than those that actually occurred is no different from the testimony from the subsequent treating physician in the prior Florida Supreme Court case. The Florida Supreme Court held: “In the context of the entire trial record, it is clear that the purpose of introducing the challenged portions of [the pediatric neurosurgeon’s] deposition testimony was to break the chain of causation between the alleged negligent conduct of [either defendant hospital], or both, and [the plaintiff’s] injuries—i.e., to establish that [the plaintiff] still would have suffered permanent brain damage even if the hospitals and their staffs had effectuated a faster transfer [between the defendant hospitals]. Therefore, [the pediatric neurosurgeon’s] testimony on that point was ‘irrelevant and inadmissible,’ … and the trial court abused its discretion in allowing it to be read to the jury.”
Source Cantore v. West Boca Medcal Center, Inc., No. SC15-1926.
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