174 So. 3d 1114
Fla. Dist. Ct. App.2015Background
- Alexis Cantore, a minor with prior hydrocephalus treated by ETV, presented to West Boca Medical Center (WBMC) ED on July 3, 2008 with headache/vomiting; triage listed her as “urgent.”
- WBMC pediatrician Dr. Freyre ordered a STAT CT, which showed worsening ventriculomegaly; she called on-call pediatric neurosurgeon Dr. Sandberg at Miami Children’s Hospital (MCH) and described Alexis as “stable.”
- LifeFlight was activated; Alexis was transferred by helicopter and acutely decompensated in flight, arriving at MCH with brain herniation; Dr. Sandberg performed an emergent ventriculostomy that saved her life but left her with severe permanent brain injury.
- Plaintiffs (the Cantores) sued WBMC and MCH for medical malpractice, arguing Dr. Freyre’s care/communications caused the injury; Dr. Freyre settled pretrial and was listed on the verdict form.
- At trial the defense presented deposition testimony from Dr. Sandberg (a treating/consulting neurosurgeon) answering hypotheticals about what he would have done had Alexis arrived earlier and been more deteriorated; plaintiffs objected as improper subsequent-treating-physician testimony.
- The jury returned a defense verdict; on appeal plaintiffs argued the court erred by admitting Dr. Sandberg’s hypothetical testimony, relying on precedent later clarified/overruled by the Florida Supreme Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of subsequent-treating physician hypothetical testimony | Dr. Sandberg’s answers were improper subsequent-treating testimony (Saunders prohibits this) and thus inadmissible | Sandberg was a co-treating/consulting physician whose hypothetical answers explained his decision-making and were admissible | Admitted — Sandberg was a co-treating/consulting physician, so Saunders II’s bar on subsequent-treating testimony did not apply |
| Whether Saunders v. Dickens controls | Saunders II bars subsequent treating physicians from testifying that better care earlier wouldn’t have changed outcome | Defendant: Saunders applies to later-only treating physicians; Sandberg’s role began before transfer so Saunders is distinguishable | Distinguished — facts here show Sandberg engaged before transfer and guided care, making him a hybrid/co-treating physician |
| Whether admission of Sandberg’s testimony was an abuse of discretion | Testimony was irrelevant and prejudicial, requiring reversal | Trial court properly exercised discretion; testimony bore on Sandberg’s own decision-making and timing of intervention | No abuse of discretion; evidentiary ruling affirmed |
| Jury’s ability to decide causation with Sandberg’s testimony present | Plaintiffs’ burden would be improperly shifted if Sandberg could testify he wouldn’t have changed care | Defense: jury still decides factual disputes about Alexis’s condition and causation; plaintiffs fully litigated their theory | Jury’s verdict stands; plaintiffs were not unfairly prejudiced and the verdict affirmed |
Key Cases Cited
- Saunders v. Dickens, 151 So.3d 434 (Fla. 2014) (Florida Supreme Court rule limiting testimony of subsequent treating physicians about whether earlier adequate care would have changed outcome)
- Ewing v. Sellinger, 758 So.2d 1196 (Fla. 4th DCA 2000) (prior Fourth DCA authority allowing subsequent-treating testimony later disapproved by Saunders II)
- Fabre v. Marin, 623 So.2d 1182 (Fla. 1993) (verdict form and Fabre defendant allocation principles)
- Ryder Truck Rental, Inc. v. Perez, 715 So.2d 289 (Fla. 3d DCA 1998) (treating physicians may testify regarding their care and medical decision-making)