Cenatus v. Naples Community Hosp., Inc.
| Decision Date | 17 January 1997 |
| Docket Number | No. 95-02707,95-02707 |
| Citation | 689 So.2d 302 |
| Parties | 22 Fla. L. Weekly D230 Leonne CENATUS, as natural parent and next best friend of David Pierre, Appellant, v. NAPLES COMMUNITY HOSPITAL, INC.; Frank Fumia, M.D.; and Lawrence J. Carley, M.D., Appellees. |
| Court | Florida District Court of Appeals |
Marc Cooper, Maureen E Lefebvre, and Maureen Gallen of Cooper & Wolfe, P.A., Miami; and Grover Weinstein Stauber & Friedman, Miami Beach, for Appellant.
Raymond T. Elligett, Jr., and Amy S. Farrior of Schropp, Buell & Elligett, P.A., Tampa, for Appellees Naples Community Hospital and Frank Fumia, M.D.
Ila J. Klion of Bunnell Woulfe Kirschbaum Keller & McIntyre, Ft. Lauderdale; and Hicks, Anderson & Blum, P.A., Miami, for Appellee Lawrence J. Carley, M.D.
Leonne Cenatus, as parent and next friend of David Pierre, appeals an adverse jury verdict in this medical malpractice case. Cenatus raises several issues on appeal. We find merit in her argument that the trial court erred by limiting the testimony of an expert witness regarding the standard of care. On this issue, we reverse as to Dr. Carley but affirm the verdict in favor of Dr. Fumia and Naples Community Hospital because as to these two defendants the error was harmless. On all other issues, we affirm without discussion.
Briefly stated, the facts of the case are as follows. In November 1986, David Pierre's parents took him to the Naples Community Hospital Emergency Room because he was feverish and vomiting. Dr. Fumia diagnosed the problem as ear infections and prescribed Tylenol and Amoxicillin, an antibiotic. The following day, David's parents took him to the Lee Memorial Hospital Emergency Room where he was seen by Dr. Carley. Dr. Carley ordered a complete blood count, a blood culture and a chest x-ray. Dr. Carley diagnosed David with an upper respiratory infection, prescribed Alupent, an asthma medication, and sent him home. From the testimony at trial, it appeared uncontroverted that David had bacteremia, a bacterial infection in the bloodstream, when he was seen by Dr. Carley. The blood culture results, which were available two days later, showed that David tested positive for bacteremia. Unfortunately, Lee Memorial failed to inform David's parents of these results. If a child with bacteremia is given effective antibiotics before the bacteria reaches the spinal fluid, meningitis is preventable. In this case, however, the meningitis "seeded," which occurs when the bacteria infects the meninges and spreads to the spinal fluid. As a result of the meningitis that developed, David is deaf, mentally retarded and paralyzed. Cenatus brought suit against Dr. Fumia, Naples Community Hospital, Dr. Carley and Lee Memorial Hospital. Lee Memorial settled prior to litigation.
At trial, Cenatus called Dr. Weintzen as an expert witness on the standard of care. The defense raised an objection regarding Dr. Weintzen's qualifications. The trial court sustained the objection and ruled that Dr. Weintzen could testify as an expert on bacteremia and bacterial meningitis but he could not testify as an expert on the standard of care. Cenatus argues that the trial court incorrectly limited this expert testimony because it applied the wrong version of the statute relating to the qualifications for an expert witness to testify regarding the standard of care.
Section 768.45, Florida Statutes (1985), provides the qualifications for expert witnesses who testify regarding the standard of care in medical malpractice actions. The defense conceded below that Dr. Weintzen would be qualified to testify as a standard of care expert under this version of the statute. But in 1988, the statute was amended and renumbered. The legislature added an additional qualification for expert witnesses who testify in actions against emergency room doctors. Section 766.102(6)(a), Florida Statutes (1988), requires that the expert witness must "have had substantial professional experience within the preceding 5 years while assigned to provide emergency medical services in a hospital emergency department." The defense argued, and the trial court...
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