Dauphinee v. Wilstrup, 96-1717

• Decision Date: 23 May 1997
• Docket Number: No. 96-1717,96-1717
• Citation: 696 So.2d 388
• Parties: 22 Fla. L. Weekly D1291 Michael DAUPHINEE, etc., Appellant, v. Mark A. WILSTRUP, M.D., OB & GYN Specialists, P.A., et al., Appellees.
• Court: Florida District Court of Appeals

Page 388

696 So.2d 388

22 Fla. L. Weekly D1291

Michael DAUPHINEE, etc., Appellant, v. Mark A. WILSTRUP, M.D., OB & GYN Specialists, P.A., et al., Appellees.

No. 96-1717.

District Court of Appeal of Florida Fifth District.

May 23, 1997.

Rehearing Denied July 10, 1997.

William G. Osborne of William G. Osborne, P.A., and Terry L. McCollough of Terry L. McCollough, P.A., Orlando, for Appellant.

Bradley P. Blystone and Richard L. Allen, Jr. of Mateer & Harbert, P.A., Orlando, for Appellees Orlando Regional Healthcare System, Inc. f/k/a Orlando Regional Medical Center and Pamela Roberts, M.D.

Jennings L. Hurt, III and Richard B. Mangan, Jr. of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Appellees Michael J. Cohen, Samuel P. Martin, M.D. and Vascular Specialists of Central Florida, Inc.

Hector A. More and Patrick H. Telan of Taraska, Grower & Ketcham, Orlando, for Appellees Mark A. Wilstrup, M.D. and OB & GYN Specialists, P.A.

COBB, Judge.

The appellant, Michael Dauphinee, as personal representative of the estate of Rosemarie P. Dauphinee, was the plaintiff below in a medical malpractice action for wrongful death filed against several defendants. He contended that the treating physician of Rosemarie Dauphinee failed to timely diagnose a massive infection in the right lower abdomen, which resulted in toxic shock and sepsis associated with a perforated abscess. The trial court directed a verdict for the defendants Wilstrup and OB & GYN Specialists, P.A. The jury found in favor of the remaining defendants, and this appeal ensued.

The appellant raises three issues. We find no reversible error in the first two, but agree with him on the third, i.e., the trial court erred in allowing the use of a pre-suit affidavit by one of the plaintiff's experts, Dr. Battle, for impeachment purposes. Unlike the situation in Adventist Health System/Sunbelt, Inc. v. Watkins, 675 So.2d 1051 (Fla. 5th DCA 1996), the doctor's affidavit in this case was prepared during the pre-suit screening process and therefore was inadmissable for any purpose pursuant to the express provisions of section 766.106(5), Florida Statutes:

No statement, discussion, written document, report, or other work product generated by the presuit screening process is discoverable or admissible in any civil action for any purpose by the opposing party. All participants, including but not limited to, physicians, investigators, witnesses, and employees or associates of the...