PBCBA BAR BULLETINS pbcba_bulletin_july2018 | Page 17

PERSONAL INJURY C o r n e r
ALLOWING SUBSEQUENT TREATING PHYSICIAN TO TESTIFY

ON CAUSATION
TED BABBITT
In a medical malpractice case, a plaintiff
and inadmissible and will not
must prove that a physician breached the
insulate a defendant physician
duty of care owed to the patient and that it
from liability for his or her own
is more likely than not that the negligence
negligence.
probably caused the plaintiff’s injury.
Gooding v. Univ. Hosp. Bldg., Inc., 445 So. 2d The problem with allowing that kind of
1015 (Fla. 1984).
testimony is that it requires almost an
impossible burden on the plaintiff to prove
In Cantore v. West Boca Medical Center, Inc., a negative. As was stated by the Saunders
43 Fla. L. Weekly S188 (Fla. April 26, 2018), the Court at 443
plaintiff suffered permanent brain damage
when there was a delay in performing an
It would place a burden on the
Endoscopic Third Ventriculostomy. As a
plaintiff to somehow prove
result of that delay, it was alleged that the 12
causation by demonstrating that
year old plaintiff suffered a brain herniation
a subsequent treating physician
because the pressure inside of her skull
would not have disregarded
became so great that the brain actually
the correct diagnosis or testing,
herniated through the bottom of the
contrary to his or her testimony
skull. As a consequence of that injury, the
and irrespective of the standard
plaintiff suffered permanent brain damage,
of care for the defendant
had significant mental impairment and had
physician. To require the
to be fed through a tube.
plaintiff to establish a negative
inappropriately adds a burden of
During the trial, the deposition of a pediatric
proof that simply is not required
neurosurgeon who had actually operated
under the negligence law of this
on the plaintiff answered hypothetical
State.
questions as to how he would have treated
the plaintiff had she arrived at the hospital In the Supreme Court dissent in Cantore, the
earlier. The witness testified that had dissent takes the position that no conflict
plaintiff been brought under his care earlier jurisdiction existed because the above
the necessary operation would not have quote was dicta rather than a holding. The
occurred until later in the day and the brain majority disagreed and found Saunders
herniation still would have occurred. The controlling.
defendant then had their expert testify
that the witness’ statement as to how the At S190 the Supreme Court holds
plaintiff would have been treated had
she arrived at the hospital earlier was
The substance of Dr. Sandberg’s
consistent with what other neurosurgeons
testimony about how he would
would have done. A verdict was returned
have treated Alexis under
in favor of the defendants and the Fourth
circumstances other than those
District affirmed in Cantore v. West Boca
that actually occurred is no
Medical Center, Inc., 174 So. 3d 1114 (Fla. 4th
different from the test imony
DCA 2015). The Supreme Court took conflict
from the subsequent treating
jurisdiction as a result of its decision in
physician in Saunders. . . it
Saunders v. Dickens, 151 So. 3d 434 (Fla.
is clear that the purpose of
2014).
introducing the challenged
The Saunders Court at 443 held
portions of Dr. Sandberg’s
deposition testimony was to
We hold that testimony that a
break the chain of causation
subsequent treating physician
between the alleged negligent
would not have treated the
conduct of WBMC or MCH, or
patient
plaintiff
differently
both, and Alexis’ injuries – i.e. to
had the defendant physician
establish that Alexis still would
acted within the applicable
have suffered permanent brain
standard of care is irrelevant
damage even if the hospitals
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and their staffs had effectuated
a faster transfer from WBMC to
MCH. Therefore, Dr. Sandberg’s
testimony on that point was
“irrelevant and inadmissible.”
Saunders, 151 So. 3d at 443,
and the trial court abused its
discretion in allowing it to be
read to The jury.
The Supreme Court makes it clear that a
subse quent treating physician may not
testify as to how his treatment would have
proceeded had he been presented with the
plaintiff under different circumstances.
The defendants are not permitted to argue
based upon hypothetical questions that
the plaintiffs have not met their burden of
causation based upon witnesses testifying
that even if they had provided the treatment
outlined by the plaintiff’s experts, the
outcome would not have been different.
The majority in the Supreme Court opinion
argued that in Saunders the Court expressly
disapproved of that type of burden shifting
argument regarding causation in a medical
malpractice case and that the Saunders
case is controlling with respect to that
issue. At 190 the Supreme Court concludes
For the foregoing reasons, Dr.
Sandberg’s testimony about how
he would have treated Alexis had
she arrived at MCH earlier was
inadmissible and cannot be
considered
harmless
error.
Accordingly, we quash the
Fourth District’s decision in
Cantore, reverse the judgment in
favor of WBMC and MCH, and
remand for a new trial.
This case makes it clear that in a medical
malpractice case a jury should not hear
testimony from a treating physician that
even if plaintiffs claimed proper treatment
was rendered the outcome would not have
been different.