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Alexis Cantore, et al. v. West Boca Medical Center, Case No. 4D13-1985 (4th DCA)

In 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.

The 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.

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