Grenitz v. Tomlian

Decision Date05 June 2003
Docket Number No. SC01-1259, No. SC01-1260.
Citation858 So.2d 999
PartiesMark S. GRENITZ, M.D., Petitioner, v. Jacob Thomas TOMLIAN, Respondent. Humana of Florida, Inc., etc., Petitioner, v. Jacob Thomas Tomlian, Respondent.
CourtFlorida Supreme Court

Debra Potter Klauber of Haliczer, Pettis & White, P.A., Ft. Lauderdale, FL, for Petitioners Mark S. Grenitz, M.D., et al.

Sylvia H. Walbolt, E. Kelly Bittick, Jr. and Joseph H. Lang, Jr. of Carlton Fields, P.A., St. Petersburg, FL, for Petitioner Humana of Florida, Inc., etc.

Todd R. Schwartz of Ginsberg & Schwartz, Miami, Florida; and Sheldon J. Schlesinger and Robert W. Kelley of Sheldon J. Schlesinger, P.A., Ft. Lauderdale, FL, for Respondents.

LEWIS, J.

We have for review Tomlian v. Grenitz, 782 So.2d 905 (Fla. 4th DCA 2001), which expressly and directly conflicts with the decisions in GIW Southern Valve Co. v. Smith, 471 So.2d 81 (Fla. 2d DCA 1985), and Bishop v. Baldwin Acoustical & Drywall, 696 So.2d 507 (Fla. 1st DCA 1997). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

The facts, as set forth in the district court's opinion, are as follows:

After what appeared to be a normal pregnancy, plaintiffs' son [Jacob Tomlian] was born with significant brain damage known as cerebral palsy, resulting from oxygen deprivation. Plaintiffs contended that the injury occurred during a difficult birth as a result of the negligence of the obstetrician and hospital, but defendants contended that it had occurred earlier, between twenty-six to thirty-four weeks of the mother's pregnancy which, according to defendants, is when this type of brain damage usually occurs.

Plaintiffs' expert neuropsychologist, who testified that the injury was caused by oxygen deprivation at birth, was not permitted to give his opinion as to why the injury had not occurred weeks prior to the birth, as contended by defendants. The trial court sustained defendant's objections to this testimony based on the state of the law as it existed at that time, which was that a psychologist, who is not a medical doctor, is not qualified to render an opinion as to the cause of brain damage. Executive Car & Truck Leasing, Inc. v. DeSerio, 468 So.2d 1027 (Fla. 4th DCA 1985).

Tomlian, 782 So.2d at 906. The district court reversed the jury verdict for defendants and remanded the case for a new trial, noting that in Broward County School Board v. Cruz, 761 So.2d 388 (Fla. 4th DCA), approved, other grounds, 800 So.2d 213 (Fla.2001), the Fourth District had receded from its prior holding in DeSerio, which it now considered to be contrary to the greater weight of authority. See Cruz, 761 So.2d at 394 (Fla. 4th DCA 2000)

(holding that psychologists are not precluded from testifying as to the cause of brain injury, based in part upon the district court's acknowledgment that, after DeSerio, the Florida Legislature had broadly defined the practice of psychology in section 490.003(4), Florida Statutes (1997)). The district court also rejected the argument that the error was not preserved because of the two-issue rule, which provides that "where two issues are submitted to a jury, only one of which is infected with error, the appellate court will assume the jury found for the prevailing party on the issue which was error-free, unless it can be determined from the form of verdict that the error was prejudicial." Tomlian, 782 So.2d at 906 (citing Whitman v. Castlewood Int'l Corp., 383 So.2d 618 (Fla.1980)). In so doing, it reasoned that this Court had clarified that the two-issue rule applies only to actions predicated on two independent theories of liability: "In the present case there was only one theory of liability, negligence, and accordingly the two-issue rule is not applicable." Id. at 907 (citing First Interstate Dev. Corp. v. Ablanedo, 511 So.2d 536 (Fla. 1987)).

Neuropsychologist's Competence to Testify Regarding Nonpsychological Causation of Organic Brain Injury

In Tomlian, the Fourth District perpetuated its change in the Florida legal evidentiary standard affecting a neuropsychologist's competency to testify concerning the nonpsychological cause of organic brain injury. The district court deemed the departure warranted by a change in section 490.003(4), Florida Statutes:

Plaintiffs' expert neuropsychologist, who testified that the injury was caused by oxygen deprivation at birth, was not permitted to give his opinion as to why the injury had not occurred weeks prior to the birth, as contended by defendants. The trial court sustained defendant's objections to this testimony based on the state of the law as it existed at that time, which was that a psychologist, who is not a medical doctor, is not qualified to render an opinion as to the cause of brain damage. Executive Car & Truck Leasing, Inc. v. DeSerio, 468 So.2d 1027 (Fla. 4th DCA 1985).

During the pendency of this appeal, this court receded from DeSerio and held that psychologists are not precluded from testifying as to the cause of brain injury. Broward County School Bd. v. ex rel. Cruz, 761 So.2d 388 (Fla. 4th DCA) rev. granted, No. SC00-1550, 779 So.2d 270 (Fla.2000) (recognizing that the Florida Legislature had, after DeSerio, broadly defined the practice of psychology in section 490.003(4), Florida Statutes (1997), and that the decision in DeSerio was contrary to the current weight of authority). We are, of course, bound to apply the law as it exists on appeal, Fla. Patient's Compensation Fund v. Von Stetina, 474 So.2d 783 (Fla. 1985), and therefore agree with plaintiffs that the neuropsychologist's testimony should have been admitted.

782 So.2d at 906.

This broad holding, through which the Fourth District receded from its prior holding in DeSerio, is contrary to the theretofore clearly announced existing rule in Florida. That rule is grounded on the fundamental observation that the determination of a nonpsychological or medical cause of organic brain damage is a medical judgment. As stated in GIW, a psychologist "may properly give opinion testimony as to an existing mental condition, see Ross v. State, 386 So.2d 1191 (Fla.1980)

; Reese v. Naylor, 222 So.2d 487 (Fla. 1st DCA 1969), and existing organic brain damage." 471 So.2d at 82. However, neither the wording of the statute itself1 nor its legislative history2 supports the proposition that a neuropsychologist is competent to testify regarding medical causes of organic brain damage. Indeed, the "practice of psychology" is defined in section 490.003(4) to include only the diagnosis and treatment of "the psychological aspects of physical illness, accident, injury, or disability, including neuropsychological evaluation, diagnosis, prognosis, etiology, and treatment." (Emphasis supplied.) "Under the principle of statutory construction, expressio unius est exclusio alterius, the mention of one thing implies the exclusion of another." Moonlit Waters Apartments Inc. v. Cauley, 666 So.2d 898, 900 (Fla.1996). The evaluation and assessment of nonpsychological or medical aspects of physical illness, accident, injury, or disability are thus, by implication, properly excluded from the statutory definition. This would necessarily include any nonpsychological medical causes of organic brain injury leading to psychological impairment.

Of course, under the law existing prior to this case, a neuropsychologist is competent to testify regarding the results of psychological testing reflecting the presence of organic impairment. See generally Bishop v. Baldwin Acoustical & Drywall, 696 So.2d 507, 510 (Fla. 1st DCA 1997)

(observing that, although psychologists are competent to testify as to the existence of organic brain damage, they "cannot testify that an accident resulted in physical injury causing organic brain [damage]"); GIW, 471 So.2d at 82 (observing that a psychologist may give opinion testimony as to an existing mental condition and existing organic brain damage). Here, in fact, the record reflects that Dr. Crown, the plaintiffs' expert neuropsychologist, did testify regarding Jacob's standardized test results, and rendered an expert opinion that they reflected Jacob's organic brain damage. Thus, the neuropsychologist was permitted to testify with regard to the etiology (brain damage) of the behavior he evaluated. He should not have been permitted to testify as to the medical causation of the organic brain damage itself.3

Using this basis as a predicate, a qualified physician could then properly have coordinated such test results with other relevant information in formulating a medical opinion regarding the nonpsychological medical cause of the organic brain damage.4 Here, the district court achieved the correct result but we believe such was based upon the wrong reasons. Contrary to the district court's decision, the trial court here did not err in disallowing the opinion testimony of someone other than a qualified physician as to the medical causation of Jacob's brain damage.5 However, the trial court did err in limiting the presentation of opinion evidence of Dr. Crown.

When the proffered testimony of Dr. Crown is fully analyzed, it becomes clear that the true issue of substance to be resolved is not whether the neuropsychologist could testify as to medical causation but, on the contrary, whether such profession and the particular witness here was competent to testify with regard to brain and behavioral development and the relationship of behavioral and functional patterns to human brain development. This is a far different inquiry and analysis than that involved in the consideration of medical causation issues impacting brain development. This record is both most interesting and telling in this regard as we dissect that which occurred during trial.

First, as reflected in the trial proceedings and presented on appeal and review here by all parties, there has never been an issue as to whether the child, Jacob, has a significant brain injury. The existence of a...

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