Gelsthorpe v. Weinstein
| Decision Date | 02 March 2005 |
| Docket Number | No. 2D03-3826.,2D03-3826. |
| Citation | 897 So.2d 504 |
| Parties | Farrah GELSTHORPE and Travis Bacus, as mother and father of Gavyn Bacus, and Farra Gelsthorpe and Travis Bacus, individually, Appellants, v. Lawrence I. WEINSTEIN, M.D., Paul R. Levine, M.D., Tampa Obstetrics, P.A., Galen Care, Inc., d/b/a Brandon Regional Hospital, Exodus Women's Center, Inc., and Columbia Brandon Regional Medical Center, Appellees. |
| Court | Florida District Court of Appeals |
Arnold R. Ginsberg of Ginsberg & Schwartz, and Theodore H. Enfield, Miami, for Appellants.
Marlene S. Reiss and Cory W. Eichhorn of Stephens Lynn Klein LaCava Hoffman & Puya, P.A., Miami, for Appellees.
The plaintiffs in a medical malpractice action appeal the summary judgment in favor of the defendants which was entered after the trial court excluded the testimony of the plaintiffs' sole expert witness on the issue of causation. Because we conclude that the trial court erred in excluding the testimony of the expert, we reverse the summary judgment.
In their medical malpractice action the plaintiffs alleged that the infant plaintiff who was born on October 2, 1997, sustained significant brain damage at birth due to the failure of the defendant physicians to promptly perform a caesarean operation ("c-section") on his mother. The trial court granted the defendants' Frye1 motion to bar, as not scientifically established and reliable, the testimony of the plaintiffs' only proposed witness on causation, Leon Charash, M.D., a neurologist specializing in pediatrics. The trial court granted summary judgment after the plaintiffs conceded that absent the testimony of that witness summary judgment was warranted for the defendants. On appeal the plaintiffs challenge the ruling barring the testimony by Dr. Charash on which the summary judgment was based.
In this matter, after extensive oral argument, the trial court orally ruled that the testimony of Dr. Charash was not "based on a scientific principle or discovery sufficiently established to have gained general acceptance in the medical field." Neither party requested an evidentiary hearing or objected to this manner of disposition. Plaintiffs argued before the trial court that the testimony of Dr. Charash did not require Frye analysis because his opinion on causation of the child's condition was based solely on his experience and training, not on any novel scientific principle or procedure.
The court considered the deposition of Dr. Charash, a chapter of a medical text mentioned by Dr. Charash at his deposition, the deposition of David P. McGraney, M.D. (another plaintiffs' expert medical witness), and the deposition of the injured infant's mother, as well as three short affidavits submitted by the defendants from physicians (a neuroradiologist, a pediatric neurologist, and a pediatric geneticist). Each of these affidavits stated in conclusory fashion that Dr. Charash's opinions did not reflect generally accepted principles in the affiant's field of expertise.
Dr. Charash testified at his deposition that he has been a physician since 1950, after graduating from Cornell Medical School. He is board certified in pediatrics, practices child neurology, and is a member of the Child Neurology Society. He has previously testified in court about 400 times as an expert witness, testifying as an expert in 10 states, including Florida, and has been deposed in approximately 400 additional cases.
Dr. Charash's deposition testimony was based on a review of medical records and a conversation with the infant's mother. He stated it was not necessary to examine the child because the child's current condition would not indicate the cause of that condition and that he accepted the findings in the medical records provided to him. In reaching his opinion, Dr. Charash did not review any medical literature. He relied on his experience practicing child neurology for forty-six years, as well as his reading of journals and texts and attendance at many seminars, roundtables, conferences, and lectures. In his career, he had treated approximately twenty children who suffered brain injury as a result of brain ischemia2 related to cephalopelvic disproportion (CPD),3 the alleged mechanism of the injury to the infant plaintiff, but none of the cases was exactly the same as that of the infant plaintiff. In other cases, the same mechanism of injury produced such conditions as cerebral palsy, epilepsy, and cortical blindness. On questioning as to whether any literature supported his opinion, he cited chapter 11 of the textbook Neurology of the Newborn by Joseph J. Volpe, M.D. Dr. Charash indicated at his deposition that he was aware that the chapter he cited discussed premature infants, while the infant plaintiff was a full term baby.
Dr. Charash concluded that the infant suffered brain damage as a result of ischemia during a traumatic birth caused by CPD. The brain damage was manifested by the child's rather severe mental retardation, with an IQ of less than 50. The child was unable to speak meaningfully, had severe problems with locomotion, as well as strabismus,4 and was not toilet trained or able to feed himself.
Dr. Charash stated that the medical records indicated that the child's mother was having her first child, the mother had difficulty in labor, and ultimately a c-section was ordered based on readings from fetal heart monitoring. An expert in obstetrics was prepared to testify that the c-section was unduly delayed. Dr. Charash's testimony would have shown the adverse result to the infant arising from the delay.
Dr. Charash stated that the mechanism of the child's brain damage was a significant head compression, causing changes in cerebrovascular autoregulation which produced ischemia. Due to the failure to promptly order a c-section, the child remained too long in an inhospitable place, with compression causing a reduction in blood supply to the brain. Dr. Charash testified that a traumatic delivery is a known cause of brain damage in cerebral palsy, and ischemia is a well-described mechanism producing brain damage.
Dr. Charash further testified that the child was born with a cephalhematoma,5 a condition which usually disappears a few days after birth. In this case, however, the cephalhematoma calcified and remained for at least eight months. A cephalhematoma itself is harmless, but is often a marker of severe injury to the head. The child's head was also bruised on the right side. The bruise did not appear to have been produced by application of forceps, but by the delivery itself, indicative of a very traumatic birth in which the head of the infant was banged against the bony pelvis.
According to Dr. Charash, a very significant factor in support of his opinion on causation was the child's microcephaly.6 The child's head size was normal at birth, and measured forty-four centimeters at four months, but the head did not grow, and was still forty-four centimeters at eighteen months. The injury at birth caused brain cells to be damaged and subsequently slowed their pattern of growth, which was a classic pattern of secondary microcephaly from birth. Such an injury would not appear on brain imaging studies because the brain did not atrophy, but just stopped growing at a normal rate.
Dr. Charash stated that the secondary microcephaly excluded a genetic cause, since genetic brain damage would have produced primary microcephaly. The child was not autistic, which is overwhelmingly genetic in origin. The child did not suffer hypoxic ischemic encephalopathy (HIE)7 at birth because he had normal Apgar scores.8 These normal scores did not exclude neurological damage because the ischemia affected the hemispheres, where there was little cerebrospinal fluid to buffer pressure, rather than the brainstem, where there is more such fluid. Dr. Charash stated he used items of inclusion and exclusion to arrive at his determination, a time honored method of arriving at a conclusion on causality of a condition.
The expert affidavits submitted by the defendants stated that (1) Dr. Charash's opinion about secondary microcephaly was "not generally accepted in pediatric genetics"; (2) there was an absence of "any medical literature to support a theory that head compression can cause brain ischemia in a neonate"; and (3) "[i]t is not generally accepted in neuroradiology that brain ischemia sufficient to cause permanent damage can occur during labor and delivery, yet not be evident on subsequent brain imaging studies."
"[T]he Frye test is utilized in Florida to guarantee the reliability of new or novel scientific evidence." Brim v. State, 695 So.2d 268, 271 (Fla.1997). The test requires that before such new or novel scientific evidence is admitted the trial judge must determine "that the basic underlying principles of [the] evidence have been sufficiently tested and accepted by the relevant scientific community." Id. at 272. "By definition, the Frye standard only applies when an expert attempts to render an opinion that is based upon new or novel scientific techniques." United States Sugar Corp. v. Henson, 823 So.2d 104, 109 (Fla.2002). "Evidence based on a novel scientific theory is inherently unreliable and inadmissible in a legal proceeding in Florida unless the theory has been adequately tested and accepted by the relevant scientific community." Ramirez v. State, 810 So.2d 836, 843 (Fla.2001). The analysis under the Frye standard "must focus only on the general acceptance of the scientific principles and methodologies upon which an expert relies in rendering his or her opinion." Henson, 823 So.2d at 110.
Under the Frye standard, "when the expert's opinion is based upon generally accepted scientific principles and methodology, it is not necessary that the expert's deductions...
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