Cantore v. W. Boca Med. Ctr., Inc.

• Decision Date: 24 September 2015
• Docket Number: No. 4D13–1985.,4D13–1985.
• Citation: 174 So.3d 1114
• Parties: Alexis CANTORE, a minor, by and through her natural parents and legal guardians, Felix and Barbara CANTORE; and Felix Cantore and Barbara Cantore, individually, Appellants, v. WEST BOCA MEDICAL CENTER, INC., d/b/a West Boca Medical Center ; and Variety Children's Hospital, d/b/a Miami Children's Hospital, Appellees.
• Court: Florida District Court of Appeals

174 So.3d 1114

Alexis CANTORE, a minor, by and through her natural parents and legal guardians, Felix and Barbara CANTORE; and Felix Cantore and Barbara Cantore, individually, Appellants

v.WEST BOCA MEDICAL CENTER, INC., d/b/a West Boca Medical Center ; and Variety Children's Hospital, d/b/a Miami Children's Hospital, Appellees.

No. 4D13–1985.

District Court of Appeal of Florida, Fourth District.

Sept. 24, 2015.

Philip M. Burlington and Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, and Linda A. Alley of Schlesinger Law Offices, P.A., Fort Lauderdale, for appellants.

Michael K. Mittelmark and Meghan K. Zavoina of Michaud, Mittelmark, Marowitz & Asrani, P.L.L.C., Boca Raton, for appellee West Boca Medical Center, Inc., d/b/a West Boca Medical Center.

Elliot H. Scherker, Julissa Rodriguez and Stephanie L. Varela of Greenberg Traurig, P.A., Miami, and Norman M. Waas and Scott E. Solomon of Falk, Waas, Hernandez, Cortina, Solomon & Bonner, P.A., Coral Gables, for appellee Variety Children's Hospital, d/b/a Miami Children's Hospital.

Opinion

ROBY, WILLIAM L., Associate Judge.

This is a sad case which emphasizes that bad things sometimes just happen in life and it is nobody's fault. We affirm on all counts but write to distinguish the facts of this case as they relate to expert physician testimony from those in Saunders v. Dickens, 151 So.3d 434 (Fla.2014), and to explain why the law as set out in Saunders does not apply to the facts in this case.

FACTS

Alexis Cantore, a minor, and her parents Felix and Barbara Cantore, appeal from an adverse jury verdict in their medical malpractice action against West Boca Medical Center (“WBMC”) and Variety Children's Hospital (a.k.a. Miami Children's Hospital (“MCH”)).

In 2006, two years before the illness that gave rise to this case, when Alexis Cantore was twelve years old, she was diagnosed with hydrocephalus

, a condition resulting from a build-up of excess cerebral spinal fluid within the cranium. Her condition resulted from a benign tumor which grew and blocked the outflow of the fluid which normally circulates around the brain. In 2006, she underwent a procedure, known as an Endoscopic Third Ventriculostomy (“ETV”), to remove the blockage. The procedure, which was performed at MCH, relieved the problem without causing Alexis any permanent injury.

However, scar tissue began to develop; a December 2007 CT scan

at WBMC showed fluid starting to accumulate around her brain again. MRIs in March and June 2008 confirmed that a blockage was occurring again. A doctor at MCH scheduled Alexis for an ETV on July 28, 2008.

However, on July 3, 2008, at 2:30 p.m., Alexis began experiencing painful headaches and vomiting. Alexis's parents called MCH; a nurse told them to bring Alexis to the nearest hospital for a CT scan

if they could not make it to MCH. Alexis was taken by ambulance to WBMC, arriving at 4:29 p.m. She was triaged and, on a three-tiered scale of categories (emergent, urgent and non-urgent), was listed in the middle category as “urgent.” “Urgent” patients are those who are sick and require care, but are able to progress. In contrast, “emergent” patients may deteriorate quickly and need interventions, while “non-urgent” patients may have something like a laceration or a bite, which requires care but is not a medical emergency. The triage nurse on duty, in categorizing Alexis as “urgent,” noted that she was awake and alert, moving all extremities, had a normal neurological exam, and a normal pupillary response, which was not indicative of an impending brain herniation

.

Dr. Freyre–Cubano (“Dr. Freyre”), a pediatrician who was working in the WBMC emergency room, ordered a CT scan

STAT at 4:47 p.m., before examining Alexis. Dr. Freyre first evaluated Alexis and noted that she had a normal pupillary exam. A nurse also noted no deficits to Alexis's eyes. Dr. Freyre performed another eye exam which showed that Alexis's pupils were equal and reactive to light. A radiologist read the new CT scan, compared it with the previous one from December 2007, and confirmed in a report that Alexis's condition was worsening, and that the ventricles were larger than they had been on the previous CT scan. The findings were “consistent with worsening hydrocephalus.”

By 5:40 p.m., Dr. Freyre had reviewed the report on the CT scan

and called Dr. Sandberg, the on-call pediatric neurosurgeon at MCH, regarding transferring Alexis to MCH. At that time, Dr. Freyre told Dr. Sandberg that Alexis was “stable.” This became an important issue at trial and now on appeal.

Dr. Freyre spoke with MCH's emergency department physicians regarding transferring Alexis via MCH's helicopter transportation service, known as “LifeFlight.” About twenty minutes later, the MCH dispatcher for LifeFlight received the request for transport.

A WBMC nurse called the operations administrator at MCH, and apparently learned that the pilots on shift were approaching the maximum twelve hours of flight time and Alexis's transport would be completed by the on-coming pilots. LifeFlight's estimated arrival time was 7:00 p.m.

At 6:22 p.m., Alexis had an episode of vomiting, during which her heart rate briefly dropped to 55. A WBMC nurse then contacted a MCH Pediatric Intensive Care Unit (“PICU”) nurse to update them. Dr. Freyre noted that she had called the MCH emergency department physician regarding Alexis's transfer and gave the necessary information.

Alexis was transferred to LifeFlight care at 7:25 p.m. She was examined by a LifeFlight nurse. The neurological assessment at that time was that Alexis was asleep, non-verbal and oriented as to person. When she was awakened, she was able to respond to her mother by nodding her head, and her pupils were equal, round and reactive to light. She had a Glasgow Coma Scale score of 13, with a perfect score being 15. She had a decrease in her speech. The helicopter lifted off at 8:09 p.m.

During the flight, Alexis suffered an acute decompensation. By the time she landed at MCH at 8:25 p.m., she had suffered a brain herniation

. Accordingly, instead of taking Alexis to PICU, hospital personnel took her straight to the ER. Alexis arrived in very critical condition. Dr. Sandberg did an emergent ventriculostomy, in which he drilled a hole into her skull to insert a catheter, thereby relieving pressure on the brain. This procedure saved her life. However, Alexis suffered permanent brain damage; she has significant mental impairment and must be fed through a tube. She will never be able to work or live independently.

Alexis's parents sued WBMC and MCH, alleging that they had not provided proper medical treatment. In a deposition that was read to the jury at trial, MCH's counsel asked hypothetical questions as to how Dr. Sandberg would have treated Alexis had she arrived at MCH an hour or two earlier. MCH's counsel asked Dr. Sandberg whether Alexis would have been intubated, assuming that she had remained stable, alert and oriented as to place, person, and time, and was at all times neurologically intact through transport. Dr. Sandberg said no, because the breathing tube

is uncomfortable and requires sedation so that patients cannot speak.

MCH's counsel also asked whether Alexis would have ended up herniating if she had arrived one to two hours earlier at MCH. Dr. Sandberg answered that even if she had arrived two hours earlier it would have been the exact same outcome because she would have still gotten a ventriculostomy

when she deteriorated. He stated that if she was awake, alert and oriented as to place, person and time, and her ventricles looked worse, he would have arranged for a procedure to be done that night or the next morning; she still would have deteriorated and wound up getting the ventriculostomy in the ER or the PICU, which was exactly what happened.

ANALYSIS

The Cantores now argue, in relevant part, that the trial court abused its discretion in allowing Dr. Sandberg's hypothetical deposition testimony as he was a subsequent treating physician explaining how he would have treated Alexis under a different set of circumstances (i.e., what he would have done had Alexis arrived two hours earlier in stable condition). The Cantores point out that, in allowing the testimony, the trial court relied on Ewing v. Sellinger, 758 So.2d 1196 (Fla. 4th DCA 2000), and Saunders v. Dickens, 103 So.3d 871 (Fla. 4th DCA 2012) (Saunders I ). After the trial, however, Saunders was overruled and Ewing was disapproved of by the Florida Supreme Court. See Saunders v. Dickens, 151 So.3d 434, 443 (Fla.2014) ( Saunders II ).

Rulings on the admission of evidence are reviewed under the abuse of discretion standard. See Simmons v. State, 934 So.2d 1100, 1116–17 (Fla.2006), cert. denied, 549 U.S. 1209, 127 S.Ct. 1334, 167 L.Ed.2d 80 (2007). The trial court abuses its discretion only if the evidentiary ruling is based on either an erroneous view of the law or on a clearly erroneous assessment of the evidence. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990).

In Saunders II, the Florida Supreme Court held that “a physician cannot insulate himself or herself from liability for negligence by presenting a subsequent treating physician who testifies that adequate care by the defendant physician would not have altered the subsequent care.” 151 So.3d at 442. The Court found that this testimony was irrelevant and inadmissible:

Medical malpractice actions often involve a battle of expert witnesses, and each party often presents testimony by experts with respect to what a reasonably prudent physician would have done and the effect that such reasonable care would have had on the patient. It is then the role of the jury to determine how a reasonably prudent physician would have acted. Because the central concern in medical malpractice actions is the reasonably prudent physician standard, the issue of whether a treating physician acted in a reasonably prudent manner must be determined for each

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