Barrio v. Wilson, 2D99-419.
| Citation | 779 So.2d 413 |
| Decision Date | 15 September 2000 |
| Docket Number | No. 2D99-419.,2D99-419. |
| Parties | Amanda C. BARRIO, as Personal Representative of the Estate of Martin Ortega, deceased, Appellant, v. James A. WILSON, M.D.; Emergency Medical Associates of Tampa Bay, P.A.; and St. Joseph's Hospital, Inc., Appellees. |
| Court | Court of Appeal of Florida (US) |
Arthur B. Skafidas of Cohen, Jayson, Skafidas, Gordon & Taylor, Tampa, and Russell S. Bohn of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, for Appellant.
Phillip D. Parrish of Stephens, Lynn, Klein & McNichols, P.A., Miami, for Appellees James A. Wilson, M.D., and Emergency Medical Associates, of Tampa Bay, P.A.
Thomas M. Hoeler of Burton, Schulte, Weekley, Hoeler, Poe & Robbins, P.A., Tampa, for Appellee St. Joseph's Hospital, Inc.
The personal representative of Martin Ortega's estate, Amanda Barrio, filed a lawsuit alleging that Ortega's death stemmed in part from medical malpractice committed by emergency room physician James A. Wilson. The case was tried before a jury, which found for the defendants. On appeal, Barrio complains that the trial court improperly allowed an unqualified expert witness to opine that Wilson did not violate the standard of care for emergency room physicians. We agree that the court should not have permitted this testimony, but we conclude that the error was harmless.
Section 766.102(6)(a), Florida Statutes (1997), provides in pertinent part that in malpractice actions against emergency room physicians "the court shall admit expert medical testimony only from physicians... who have had substantial professional experience within the preceding 5 years while assigned to provide emergency medical services in a hospital emergency department." The witness in question, Dr. Fulkerson, was a specialist in pulmonary medicine. He was not an emergency room physician, did not hold himself out as an expert in emergency medicine, and had not served on the staff in an emergency room department in at least 15 years. Although Dr. Fulkerson frequently consulted on emergency room cases and saw patients in that setting, he had not been assigned to provide emergency medical services in a hospital emergency department within the previous five years. Therefore, under the plain terms of the statute he did not qualify to testify on the standard of care for emergency room physicians. See Cenatus v. Naples Community Hospital, Inc., 689 So.2d 302 (Fla. 2d DCA 1997); see also Franklin v. The Public Health Trust of Dade County d/b/a Jackson Memorial Hospital, 759 So.2d 703 (Fla. 3d DCA 2000) ().
The defendants argue that Dr. Fulkerson was qualified to testify under section 766.102(2)(c)2., which provides that one who is not a "similar health care provider" as the defendant nevertheless may testify if he or she, "to the satisfaction of the court, possesses sufficient training, experience,...
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...against an emergency room physician must meet specific statutory requirements not applicable to other physicians. See Barrio v. Wilson, 779 So.2d 413 (Fla. 2d DCA 2000). Whether Dr. Charash was qualified to give an opinion against an emergency room physician is clearly a collateral and irre......
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