Malpractice Cases

What follows are reports of some of the significant medical malpractice cases ruled on by Florida's appellate courts and supreme court for approximately the past year. These reports include only our brief synopsis about the legal significance of these cases, and you should always obtain and read the entire case opinion to see what else is in the opinion. You should not attempt formal legal research on our site because we do not have full case databases nor are we able to keep our reports current on a day-to-day basis. It should be remembered that all cases are fact specific, and even a slight change in the facts could change the outcome of these cases.

Frye test held unnecessary for causation opinion in case against psychiatrist arising out of patient suicide. Rickgauer v. Sarkar, 804 So.2d 502 ( Fla. 5th DCA 2001). In this suicide case alleging psychiatric malpractice, the Court stated that a Frye hearing would not be necessary before the plaintiffs expert could testify that in his opinion, had the defendant psychiatrist recommended hospitalization when the patient came to see her, or had she prescribed other stronger anti-psychotic medication, the patient would have followed her recommendations and would not have committed suicide the next day. The Court reasoned that this was pure opinion testimony, and was not new or novel scientific evidence. The Court pointed out that most expert opinions are not subject to the Frye test. The Court stated that while the Frye test would not preclude this testimony, it might be excluded on other grounds. Under these particular facts, the Court found that the disputed testimony was essentially allowed to come in anyway, so the ultimate outcome below was affirmed

Plaintiffs expert opinions regarding medication being the cause of plaintiffs birth defects held to have passed the Frye test. Rodriguez v. Feinstein, M .D., 793 So.2d 1057 ( Fla. 3rd DCA 2001). The patient and her child brought a medical malpractice case against a doctor alleging that he failed to warn the patient not to become pregnant while taking the medication. The allegations were that taking the medication during pregnancy resulted in the infant's serious birth defects. An evidentiary Frye hearing was held at which plaintiff had three medical experts and defendant had two. Following the hearing the trial court found that plaintiff's expert testimony on causation was inadmissible and then struck the testimony because the conclusions reached were not based upon generally accepted scientific principles. On appeal the Third District Court of Appeal pointed out that the standard of review on Frye issues is de novo. The appellate court then found that the methodology that plaintiff's experts used to reach their conclusions about the teratogenicity of the drug in question is the same methodology generally accepted in the scientific community to establish the teratogenicity of any particular drug. They reached their conclusion by considering the 1) timing and duration of exposure to the drug; 2) the lingering effect of the drug in the system after the patient stops taking it due to the drug's attraction to fatty tissue; 3) the drug's molecular weight which is small enough to be transferred through the placenta; 4) the FDA's classification of the drug as a category "C", teratogenic in animals; 5) the manufacturer's package insert which warns against taking the particular drug during pregnancy; 6) animal studies which have shown the drug to cause birth defects; and 7) the statistical increase in birth defects according to FDA adverse reaction reports. The experts for plaintiff testified that this was generally the methodology used in the scientific community to arrive at an opinion on teratogenicity. Defendant's experts admitted that the lines of reasoning used by plaintiff's experts to reach their conclusions were the generally accepted methods in the scientific community to approach the question of teratogenicity with the exception of the FDA reports.

Plaintiff does not need a medical expert opinion in an informed consent case based on complete absence of consent, as distinguished from lack of informed consent. Gouveia v. Phillips, ___ So.2d ___, 2002 FLW 663482, ( Fla. 4th DCA 4-24-02 ). This lengthy but humorous opinion by Judge Farmer addresses the issue of whether a plaintiff needs a medical expert to testify in an informed consent case. In its holding, the court distinguished between the species of consent cases that deal with whether the consent was "informed", from the species of consent cases where the allegation is that there was actually no consent given. The court stated that normally an expert opinion is necessary in "informed" consent cases to delineate what information should be given under the standard of care. However, no expert would normally be needed in the case where the issue is merely a factual one addressing whether the procedure performed was ever consented to at all.

Expert opinion that more likely than not plaintiffs leg could have been saved if the vascular disorder had been diagnosed earlier should have prevented a directed defense verdict on causation. Hughes v. Slomka, M .D., 807 So.2d 98 ( Fla. 2nd DCA 2002). This was a case against an orthopedic surgeon arising out of the amputation of plaintiff's leg. A directed verdict was granted to defendant based on inadequate evidence of causation. The Second District reversed. Plaintiff's expert had testified that more likely than not the leg could have been saved if the vascular disorder had been diagnosed between January 1st and February 23rd , but then also testified that he thought from the end of January onward, even assuming good care and treatment, there was only a 50/50 chance of saving the leg. The appellate court ruled that on motion for directed verdict the non-moving party gets the benefit of all reasonable inferences and while this testimony was somewhat internally inconsistent, an inference could be drawn that his opinion was that the surgeon could more likely than not have avoided the amputation if he had diagnosed the vascular problem at least during the month of January. This meant the traditional test for causation announced in Gooding v. University Hospital Building, Inc., 445 So.2d 1015 ( Fla. 1984), was satisfied by the testimony.

Defendant was allowed to discover directly from plaintiffs law firm all of an experts billing invoices from other cases he had worked on with the same firm. M organ, Colling & Gilbert, P.A. v. Pope, M .D., 798 So.2d 1 ( Fla. 2nd DCA 2001). Plaintiff's two medical expert witnesses were unable to provide much information during their depositions regarding their prior financial relationships arising out of other cases they had worked on with the law firm representing the plaintiff. The defendant sought production of the information directly from the plaintiff's law firm, which then moved for a protective order. The trial court ordered the plaintiff's firm to produce deposition and trial transcripts of the expert witnesses that it possessed, as well as copies of billing invoices submitted by the expert to the law firm for the previous three years, including for the pending malpractice case. The plaintiff's firm did not object to the production of testimony transcripts, but did object to the production of billing invoices from other cases. The Second District Court of Appeals affirmed the trial court's order finding that the previous history of financial payments from the law firm to the medical expert witnesses was relevant to the defendant's efforts to demonstrate a possible witness bias. No attorney-client privilege was invaded because the trial court had ordered the information to be compiled in redacted form. The court did point out that neither expert was able to provide documentary information regarding their relationship with the firm. The court stated that production of information such as tax payer identification number and 1099 forms are generally discoverable (See Olivas v. Bravo, 795 So.2d 103 ( Fla. 3rd DCA 2001)). The court suggested that had the expert produced this information, it might have rendered the discovery requests directed to the law firm moot, or otherwise inappropriate.

4th District "further refines" its recent Frye decision. Holy Cross Hospital, Inc. v. Marrone, __ So. 2d __, 27 FLW D1212 ( Fla. 4th DCA 5-17-02 ). In the first opinion, at 27 FLW D39a, the Court ruled that a Frye hearing should have been held prior to admission of an oncologists causation opinion testimony in a cancer case. The expert had stated he based his opinion about when the cancer had metastasized on well-known cancer staging studies. The District Court had overruled the trial court, stating this was a "new or novel" use of cancer staging studies, which compelled an evidentiary Frye hearing prior to a ruling on the admissibility of that testimony. Plaintiff's favorable judgment was therefore reversed and the case was remanded for a Frye hearing. On motion for clarification, at 27 FLW D668d, the District Court added that a new trial would be necessary only if after conducting the Frye hearing the trial court concluded that the expert's opinion testimony was inadmissible. Now, on a second motion for clarification, at 27 FLW D1212, the opinion was even "further refined". The defendant was arguing that if the experts opinion was found inadmissible, then defendant should receive a directed verdict. The District Court disagreed, and pointed out that a large part of the expert's opinion testimony was based on "pure opinion" and therefore it would be admissible on the issue of causation without being subject to a Frye test at all. The Court said that if the "staging study" testimony is held inadmissible after the Frye hearing, then the trial court should exercise its discretion to allow the other opinion testimony from the expert witness during a second trial.

It was not error for trial court to prevent defense counsel from attempting to impeach Plaintiff's cardiology expert witness on a collateral matter. Goss v. Permenter, __So.2d __, 27 FLW D1911(c) ( Fla. 5th DCA 8-23-02 ). At trial Plaintiff's cardiology expert was offering an opinion on the standard of care of a cardiologist. Defense counsel attempted to impeach Plaintiff's cardiology expert by questioning him about a prior case where another trial judge had disqualified his opinion offered against an emergency room physician. On appeal the Fifth District Court of Appeal sided with the trial judge and held that whether Plaintiff's expert was qualified to give an opinion against an emergency room physician in another case is clearly a collateral and irrelevant matter.