Recent Florida Decision on the Admissibility of Treating Physician Testimony Based on Hypothetical Facts Which Differ from Those Actually Presented in a Medical Malpractice Case in Florida

by Fowler White Burnett, P.A.
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Florida’s Fourth District Court of Appeal recently considered when a treating physician may offer testimony based on hypothetical facts different than those presented in a medical malpractice case.  In Cantore v. West Boca Medical Center, Inc., 40 Fla. L. Weekly D2182 (Fla. 4th DCA Sept. 24, 2015), a 12 year old patient with a history of hydrocephalus (a swelling of the brain due to fluid retention) again developed fluid retention in her brain as a result of scar tissue from a previous operation.  Several weeks prior to a scheduled surgical procedure to remove the fluid, she reported painful headaches and vomiting and was taken to West Boca Medical Center (WBMC) for treatment.  At WBMC, an ER pediatrician admitted her and, shortly after admission, noted, although her hydrocephalus was worsening, she was stable.  Shortly thereafter, the WBMC pediatrician consulted with a pediatric neurosurgeon at Miami Children’s Hospital (MCH), as WBMC did not have a pediatric neurosurgeon on call, reporting the patient was stable.  The pediatrician also established communication with LifeFlight personnel at both WBMC and MCH.  Due to a pilot shift change, the patient was not airlifted from WBMC until 2.5 hours after admission.  She rapidly decompensated during the flight, including developing a brain herniation.  Upon arrival at MCH, the pediatric neurosurgeon performed an emergent procedure to drill a hole in the patient’s skull and insert a catheter to drain the fluid.  Her life was saved but she suffered permanent brain damage.

The patient and her parents sued MCH, WBMC, and the WBMC pediatrician (but not the neurosurgeon) for medical malpractice.  The pediatrician settled before trial but both hospitals proceeded to trial and obtained a total defense verdict. 

During trial the neurosurgeon’s deposition testimony was read to the jury.  During his deposition, and over plaintiffs’ counsel’s objections, the neurosurgeon was asked if he would have treated the patient any differently if she had arrived at MCH an hour or two sooner in stable condition.  He responded his treatment would not have differed based on when and in what condition she arrived at MCH; instead, her condition would have decompensated at some point during that admission to the point where he would have needed to perform the surgical insertion of a catheter into her skull on either an emergent or scheduled basis. 

The plaintiffs appealed and argued the trial court erred in admitting the neurosurgeon’s testimony regarding what he would have done if the patient arrived to MCH sooner and in stable condition.  Specifically, the plaintiffs contended the admission of this testimony ran afoul of a recent Florida Supreme Court decision, Saunders v. Dickens, 151 So.3d 434 (Fla. 2014).  That case held “a physician cannot insulate himself or herself from liability for negligence by presenting a subsequent treating physician who testifies that adequate care by the defendant physician would not have altered the subsequent care.”  Id. at 442.  The Florida Supreme Court reasoned admission of such testimony “would alter the long-established reasonably prudent physician standard where the specific conduct of an individual doctor in a specific circumstance is evaluated.”  Id.

            The Fourth DCA upheld the Cantore trial court’s admission of the neurosurgeon’s testimony on several bases.  It explained that Cantore differed from Saunders because the subsequent treating physician’s testimony offered by the Saunders defendant began after the negligent care at issue.  Thus, the Cantore pediatric neurosurgeon “was a co-treating physician, and thus his role squarely exceeded that of a subsequent treating physician.”  40 Fla. L. Weekly D2184.  In addition, and also in contrast to Saunders, the neurosurgeon was a neutral third party witness with no incentive to deny wrongdoing or liability.  Id. at D2185. 

            Secondly, the Fourth DCA reasoned the neurosurgeon’s testimony was properly admitted because, by answering the challenged questions, the neurosurgeon was explaining his own medical decision-making process and how different decisions he might have made would have affected the patient’s neurological status and condition, therefore ultimately affecting when and whether he performed the surgical incision of a catheter into her skull.  Id.  Accordingly, his testimony as to when he would have performed the procedure in the event the facts presented in defense counsel’s hypothetical scenarios had come to pass was “based on his understanding of the [patient’s] condition at that time.”  Id.

            Third, the Fourth DCA also noted the admission of the challenged testimony was proper because, in answering defense counsel’s hypothetical questions, the neurosurgeon was acting in a role as a hybrid treating physician-expert witness.  Therefore, the court reasoned, as a testifying expert, the neurosurgeon would be free to answer questions based on facts not in evidence.  Id.

Cantore presents some useful takeaways for the attorney who finds a favorable treating physician to whom counsel would like to present hypotheticals which could help counsel’s case.  However, Saunders presents a high bar in attempting to accomplish this; counsel seeking the admission of such testimony must establish the treating physician is testifying as a co-treating physician rather than a subsequent treating physician.  In the alternative, counsel also may be able to argue that the testifying treating physician is testifying in a role as a hybrid treating physician-expert witness who is permitted to consider facts not in evidence.  The latter may be easier to establish, as the factual scenario presented in Cantore is likely to be very case-specific in contrast to the likely more common factual scenario presented in Saunders.

The best basis upon which to argue for the exclusion of such testimony would be that the testifying physician is testifying as a subsequent treating physician rather than a co-treating physician, testimony which would be barred by the Saunders decision.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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