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Florida Supreme Court rules in medical negligence case that trial court erroneously admitted testimony from treating physician based on improper hypothetical

On April 26, 2018, in Cantore v. West Boca Medical Center, No. SC15-1926, the Florida Supreme Court quashed a Florida Fourth DCA opinion that had affirmed a defense verdict in a medical negligence action. The plaintiff in the case argued on appeal that the trial court had improperly admitted into evidence the deposition testimony of a pediatric neurosurgeon who operated on the plaintiff’s child after the alleged negligence had already occurred at the hand of another medical provider. One of the crucial issues in the case was whether the operation had been negligently delayed. The neurosurgeon testified in his deposition that even if the child had arrived an hour or two earlier, it would not have changed his decision-making and would not have changed the outcome. The Florida Supreme Court saw no reason to distinguish this case from its previous decision in Saunders v. Dickens, 151 So. 3d 434, 443 (Fla. 2014), in which the Court held that testimony “that a subsequent 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 Supreme Court also concluded that “nothing in the four corners of Saunders provides that the admissibility of a subsequent treating physician’s testimony about the causation element is affected by the subsequent treating physician also serving as an advisor to an initial treating physician or being referred to as a neutral and ‘hybrid’ expert witness.”

On a separate issue, the Florida Supreme Court ruled that the trial court also had erred in granting a directed verdict in favor of two defendants based on the application of the Good Samaritan Act, Fla. Stat. Section 768.13, which grants immunity from civil damages to any healthcare provider that provides “emergency services,” unless the damages are the result of “reckless disregard.” The Florida Supreme Court concluded that because there was conflicting evidence regarding whether the child was stabilized and capable of receiving medical treatment as a nonemergency patient at the time of the alleged negligence, this issue should have been left for resolution by the jury.

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