Cantore, the Fourth District affirmed a jury verdict in favor of the defense in
a medical malpractice action, and wrote to discuss the issue of subsequent
treating physician testimony.
In 2006, the plaintiff, at twelve years old, was diagnosed with hydrocephalus,
and underwent a procedure known as Endoscopic Third Ventriculostomy (ETV)
to remove a blockage causing build-up of excess cerebral spinal fluid
in her cranium. The procedure relieved the pressure without any complications.
Two years later, however, in June 2008, the plaintiff suffered an episode
in which she began experiencing headaches and vomiting. She was rushed
to West Boca Hospital, where she was treated by Dr. Freyre, a pediatrician.
Dr. Freyre ordered a CT-Scan, which showed worsening hydrocephalus and
increased pressure and buildup in the plaintiff’s cranium. Just
over an hour after arriving at the hospital, Dr. Freyre had reviewed the
CT-Scan and contacted Dr. Sandberg, the on-call pediatric neurosurgeon
at Miami Children’s Hospital. Dr. Freyre ordered a helicopter transport
for the plaintiff to be sent to Miami Children’s Hospital. Prior
to being transported by helicopter, and while still at West Boca Hospital,
the plaintiff had an additional vomiting episode. The staff at West Boca
Hospital, including Dr. Freyre contacted Miami Children’s Hospital
and provided an update. The plaintiff’s helicopter transport lifted
off at 8:09 PM. During flight, the plaintiff suffered an acute decompensation,
and by the time the helicopter landed, she had suffered a brain herniation.
She was rushed to Miami Children’s emergency room, where Dr. Sandberg
conducted an emergency ventriculostomy. The procedure saved her life,
but she suffered permanent brain damage. The plaintiff and her family
later filed suit against Dr. Freyre and West Boca Hospital.
At trial, the jury heard deposition testimony of Dr. Sandberg, where he
answered hypothetical questions about how he would have treated the plaintiff
had she arrived at Miami Children’s Hospital an hour or two earlier.
Dr. Sandberg testified that the outcome would have been the same even
had the plaintiff arrived earlier, “because she would have still
gotten a ventriculostomy when she deteriorated.” Dr. Sandberg stated
that if she was awake, alert and oriented as to place, person and time,
he would have arranged for a procedure to be done later in the night of
the next morning, and so she would still have deteriorated and wound up
getting the ventriculostomy. Following the jury’s verdict in favor
of the defense, the plaintiff appealed the trial court’s permitting
the hypothetical testimony to be read to the jury.
The Fourth District distinguished the facts of this case from the facts in
Saunders v. Dickens, 151 So. 3d 434 (Fla. 2014). In
Saunders, the Florida Supreme Court held that “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.” The court found such
testimony to be irrelevant and inadmissible, and added:
“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 negligence decision or engages
in a potentially negligence act.” Therefore, “allowing physicians
to present subsequent physician testimony that care would not have been
altered had the defendant physician exercised adequate care would alter
the long-established reasonably prudent physician standard where the specific
conduct of an individual doctor in a specific circumstance is evaluated.” In
Saunders, the defendant physician introduced testimony of a second physician that,
even if the second physician had had the results of a cervical MRI earlier,
the second physician would not have operated earlier because the patient
had not yet had problems with his arms. The
Saunders court found such testimony to be irrelevant and inadmissible.
Cantore court founds
Saunders to be distinguishable and inapplicable. The
Cantore court found Dr. Sandberg, whose testimony was at issue on appeal, to not
be a subsequent treating physician but rather a co-treating physician.
The court explained that Dr. Sandberg’s involvement began when Dr.
Freyre contacted Dr. Sandberg to request his neurosurgical expertise,
and Dr. Sandberg remained involved in the plaintiff’s treatment
following that call. Therefore, Dr. Sandberg was a co-treating physician
or, at a minimum, a consulting treating physician. The court found that
Dr. Sandberg’s care and instruction was “essentially inseparable”
from Dr. Freyre’s “alleged failure to appropriately treat
[the plaintiff] prior to transport.” “Florida law is clear
that the jury should hear from a plaintiff’s treating physicians
– as in more than one, when there are more than one involved –
regarding their care, recommendations, and medical decision-making.”
As such, the Fourth District explained that the jury was properly allowed
to hear Dr. Sandberg’s as a co-treating/consulting physician, including
his “complete medical decision-making rationale.” The Fourth
District also found it appropriate for the jury to hear from Dr. Sandberg
as an expert regarding when he normally performs or when it might be necessary
to perform an emergent ventriculostomy. The Fourth District additionally
concluded that the plaintiff was not “hindered or restricted from
expressing” her theory of liability to the jury. Accordingly, the
Fourth District ruled that Dr. Sandberg’s testimony was properly
admitted, and the jury’s verdict was affirmed.