This is an appeal from a final judgment in a medical malpractice action brought by appellant, Tina Hargrove, in which the trial court entered judgment for appellee, Dr. James Howell, in accordance with the jury’s verdict absolving him from all liability. Appellant and appellee raise, a number of issues. We affirm all, but specifically address appellant’s claim that the trial court erred in allowing a defense expert, Dr. Michael Foley, to testify at trial regarding matters not disclosed in his pretrial deposition.
The gravamen of appellant’s complaint rested upon the testimony of her witness, Dr. Robert Wears, an expert in emergency medicine, regarding the standard of care Dr. Howell exhibited in his treatment of the personal representative’s decedent, Henry Hargrove. Dr. Wears testified that had Dr. Howell conducted proper testing for decedent’s condition when he first presented himself at Dr. Howell’s office complaining of severe abdominal pain, Dr. Howell could have diagnosed Hargrove’s condition as a dissecting aorta, rather than, as he had erroneously done, dyspha-gia (difficulty in swallowing), esophageal stricture, muscular strain, and possible traumatic degenerative joint disease. In the expert’s opinion, Dr. Howell should have, based upon Hargrove’s symptoms, ordered more tests,
In defense, Dr. Howell relied primarily on the opinion of Dr. Michael Foley, a radiologist, who examined Hargrove’s medical records,- esophagram, and upper GI series. Consistent with his earlier deposition-testimony, Dr. Foley agreed with Dr. Howell’s diagnosis that the records disclosed mild to moderate esophagitis, and that there was no evidence in them of an aortic dissection or rupture. He additionally testified, apparently based on his own independent research, that 98 percent of patients with Type A aortic dissection, which is what Hargrove had, die within six hours from symptom onset before reaching a hospital, and of the remaining two percent who are admitted, the mortality rate is 45 percent.
Plaintiff objected to the additional testimony, claiming surprise, and the objection was overruled. During cross-examination of Dr. Foley, Hargrove attempted to impeach him by referring to a text on internal medicine, which the trial court had ruled was authoritative. The following colloquy occurred:
Q: [Plaintiffs counsel] Do you agree or disagree with this sentence? “The overall in-hospital mortality rate, after surgical treatment of patients with aortic dissection, is reported to be 15 to 20%.”
A: It’s in the ballpark. As we said before, the overall in-hospital mortality is 25%. You’re reading out of Harrison’s I believe.
Q: Yeah.
A: I am quoting the International Registry of Aortic Dissections, which is the*962 world’s largest series of aortic dissections of those that make it to the hospital. I don’t know what the date of your book is, but my reference is—
Q: I need you to stop and we need to approach.
Hargrove objected that the witness was not permitted to quote from an authoritative source, the International Registry of Aortic Dissections (IRAD) study, to bolster his opinion. The court overruled the objection, stating that bolstering a witness’s testimony is prohibited in direct examination, but not during cross-examination.
We agree with Hargrove that the lower court erred in permitting the testimony; we disagree, however, that the error required reversal. Dr. Foley’s reference to the IRAD study, not revealed during his deposition, constituted an improper bolstering of his opinion, and the fact that it was made during cross-examination, rather than on direct, is immaterial. See Tallahassee Mem’l Reg’l Med. Ctr. v. Mitchell,
Nevertheless, we consider the error harmless. The single comment regarding the study, made by Dr. Foley during the course of a four-day trial, was never again mentioned. Moreover, much of the surprise that appellant complains of was the result, in large measure, of her not conducting a more thorough deposition examination of appellee’s expert. As the Florida Supreme Court observed in Binger v. King Pest Control,
In deciding whether the testimony of an undisclosed witness should be excluded, the primary factor to consider is whether the use of such testimony will prejudice the objecting party. Binger,
AFFIRMED.
Notes
. In Dr. Wears’ opinion, Dr. Howell should have taken a chest x-ray and performed an EKG on Hargrove.
. This material was not introduced during trial; it was attached to appellant's motion for new trial.
. The expert, Dr. Wears, did not differentiate between Type A and Type B rates.
