53 So. 3d 395
Fla. Dist. Ct. App.2011Background
- A volunteer orthopedic surgeon served as high school football team's physician during an injury event.
- The plaintiff was tackled, later experiencing neck and right shoulder pain; the doctor examined him briefly on the field.
- Plaintiff was transported to the hospital; x-rays and CT were interpreted by the doctor; he diagnosed neck strain and contusion.
- Three days later, MRI revealed epidural hematoma and cord contusion; the doctor retrospectively acknowledged backboard placement on field.
- The jury found negligence on the field treatment but not at the hospital; the doctor and others faced liability and cost judgments.
- The court analyzed volunteer immunity under 768.135 and expert qualification under 766.102, affirming the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of ER expert on field care | ER expert should testify despite not being orthopedic. | ER expert lacks same specialty as defendant. | ER expert admissible; not restricted to same specialty. |
| Effect of 768.135 immunity for gratuitous care | Immunity may not apply because services were not gratuitous at field. | Immunity covers gratuitous emergency care at event. | Gratuitous field services implicated immunity; insured as to field care. |
| Meaning of 'similarly licensed' in 768.135 | Requires same or similar licensing category just by MD status. | Broad 'similarly licensed' includes physicians from various licensed branches. | 'Similarly licensed' includes doctors licensed under related medical disciplines. |
| Scope of 766.102(5) 'similar specialty' requirement | Emergency medicine/similar practice qualifies for evaluating field care. | Rigid 'same specialty' requirement may apply. | Flexible approach; ER physician can qualify as 'similar specialty' given case facts. |
Key Cases Cited
- Barrio v. Wilson, 779 So.2d 413 (Fla. 2d DCA 2000) (emergency/related specialties considerations under 766.102(5))
- Oken v. Williams, 23 So.3d 140 (Fla. 1st DCA 2009) (emergency vs other specialties; active practice required)
- Holden v. Bober, 39 So.3d 396 (Fla. 2d DCA 2010) (rejects rigid same-specialty rule; questions qualifications for expert)