Philippon v. Shreffler

• Decision Date: 04 June 2010
• Docket Number: 4D08-2075,4D07-4430,4D08-28,No. 4D07-4104,4D07-4105,4D08-2254.,4D07-4104
• Parties: Marc J. PHILIPPON, M.D., and Holy Cross Hospital, Inc., d/b/a Holy Cross Medical Group; Holy Cross Hospital, Inc., d/b/a Holy Cross Hospital; Holy Cross Health Corporation d/b/a Holy Cross Hospital, Inc., Appellants,v.Katie SHREFFLER and Smith & Nephew Endoscopy, Inc., f/k/a Smith & Nephew Dyonics, Inc.; Smith & Nephew, Inc., Appellees.
• Court: Florida District Court of Appeals

33 So.3d 704

Marc J. PHILIPPON, M.D., and Holy Cross Hospital, Inc., d/b/a Holy Cross Medical Group; Holy Cross Hospital, Inc., d/b/a Holy Cross Hospital; Holy Cross Health Corporation d/b/a Holy Cross Hospital, Inc., Appellants,v.Katie SHREFFLER and Smith & Nephew Endoscopy, Inc., f/k/a Smith & Nephew Dyonics, Inc.; Smith & Nephew, Inc., Appellees.

Nos. 4D07-4104, 4D07-4105, 4D07-4430, 4D08-28, 4D08-2075, 4D08-2254.

District Court of Appeal of Florida Fourth District.

March 17, 2010.

Rehearing Denied June 4, 2010.

Mark Hicks, Dinah Stein, and Brett Powell of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, and Thomas C. Heath of Heath & Carcioppolo, Chartered, Fort Lauderdale, for Marc J. Philippon, M.D. and Holy Cross Hospital.

Scott M. Newmark, Crane A. Johnstone and Sheldon J. Schlesinger of Sheldon J Schlesinger, P.A., Fort Lauderdale, and Bard D. Rockenbach and Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, for Katie Shreffler.

Gary L. Sanders and Susan J. Cole of Bice Cole Law Firm, P.L., Ocala, for Smith & Nephew.

LEVINE, J.

These consolidated appeals and cross-appeal in this medical malpractice action present several issues regarding the patient's introduction of two witnesses and evidence of the surgeon's medical privileges, as well the closing argument by patient's counsel. Specifically, appellants raise on appeal the following for consideration: whether the trial court improperly allowed the expert opinion of the patient's treating physician; whether the trial court improperly allowed the testimony of a “surprise” witness; whether the trial court erred in requiring the admission of the delineation of the surgeon's medical privileges; and whether the patient's closing arguments were improper. We find that none of these issues require reversal, and therefore we affirm the judgment.

In 1997, Dr. Philippon (the “surgeon”), an orthopedic surgeon at Holy Cross Hospital (the “hospital”), performed a hip arthroscopy on seventeen-year-old Katie Shreffler (the “patient”) to repair a labral tear. When the patient did not recover from the surgery within the projected time, she requested a surgical report from the hospital and went to other doctors. In 1998, Dr. McCarthy, a hip arthroscopist, performed a debridement to remove the tissue that could not heal, but the patient continued to experience pain and limited mobility.

In 1999, the patient filed a complaint against the surgeon and the hospital asserting claims of medical negligence and vicarious liability for negligently granting the surgeon privileges. The patient subsequently filed an amended complaint adding the manufacturer of the surgical instruments, Smith & Nephew, as a defendant and asserting a claim of products liability. After a trial, the jury found for the patient and returned a verdict finding she sustained $2.15 million in damages, assigning liability of 43% to the surgeon, 57% to the hospital and 0% to the manufacturer. This consolidated appeal follows.

Although a pretrial order limited the parties to one expert per specialty, the court permitted the patient to offer the testimony of her treating physician, Dr. Michael Tidwell. According to Tidwell, the patient's recurrent pain suggested a failed surgery. Tidwell observed that the patient had gouges in her cartilage caused by a sharp instrument. He reasoned that the gouges were inflicted by the surgeon because he was the only person who had been in the hip joint before Dr. McCarthy. Tidwell opined that, within a reasonable degree of medical probability, the injuries were caused by the surgeon's procedure and that the injury to the joint fell below the standard of care.

“[T]he trial court has broad discretion to determine the number of witnesses to be called by either party.” Elder v. Farulla, 768 So.2d 1152, 1155 (Fla. 2d DCA 2000). “The range of subjects about which an expert witness will be allowed to testify are within the trial judge's broad discretion.” Roseman v. Town Square Ass'n, 810 So.2d 516, 522 (Fla. 4th DCA 2001). The surgeon contends that the patient was allowed effectively two expert witnesses instead of the one expert per specialty limitation outlined in the pretrial order. During trial, the patient argued that allowing her to have an additional expert would even up the sides, because the both the surgeon and manufacturer were permitted one expert, effectively meaning the defense would have two experts. Ultimately, the surgeon neither called his listed expert, nor requested permission to call a second additional expert orthopedic surgeon.

The trial court was within its discretion to allow the testimony of the second expert orthopedic surgeon, Dr. Tidwell. Tidwell testified to the breach in the standard of care, in addition to his testimony as a fact witness. As the Fifth District has explained,

The fact that it was corroborative of other testimony, or even cumulative to it, does not matter. A medical malpractice case is always necessarily a battle of expert witnesses. Within only very broad limits all qualified opinion testimony should be allowed; that is, not disallowed because it is cumulative to other evidence.

Lake v. Clark, 533 So.2d 797, 799 (Fla. 5th DCA 1988).

Further during trial, the patient sought to introduce the eyewitness testimony of Julie Snogles, a surgical technician who had been present during the operation. During discovery, the patient had repeatedly requested contact information regarding Snogles, but despite court order, appellants never provided the information. The patient's counsel did not locate the witness until he conducted an internet search during trial. The patient maintained there was no prejudice to appellants because they clearly knew of Snogles. Snogles's name was in the hospital records and in the hospital's answer to interrogatories.

Appellants argued that they would be prejudiced by her testimony, as knowledge that she would testify would have affected their opening statement, their cross-examination of witnesses, and their defense. They would have investigated Snogles's background and history for purposes of cross-examining her. After deposition, appellants further argued that they were prejudiced because Snogles named people in her deposition that they would have wanted to question.

The court found that there was no surprise, because the patient had attempted to obtain the witness's contact information, and both sides knew the witness's name and of her presence in the operating room. Although the court concluded that the hospital either knew or should have known how to locate her, it found no evidence of willful nondisclosure or bad faith. The court ruled that taking the witness's deposition cured any prejudice and that the hospital had not shown how it could have protected itself more by knowing of the witness sooner. The court permitted her to testify, concluding that her testimony would not endanger the fairness of the trial.

Snogles testified that the patient was the second or third patient upon whom the surgeon had performed a hip arthroscopy. The surgeon told her that it was a new procedure and that he was new at performing the procedure. Halfway through the surgery, the surgeon created a third portal. Snogles asked him why he was making a third hole, and he said to remove a foreign object. She never saw a foreign object being removed, nor did she see him fracture either of the shavers.

Whether this witness should have been allowed to testify is within the broad discretion of the trial court. The Florida Supreme Court in Binger v. King Pest Control, 401 So.2d 1310, 1312 (Fla.1981), left the “ultimate control over witness disclosure problems to the broad discretion of the trial judge and focuses on prejudice in the preparation and trial of a lawsuit.”

In determining if an undisclosed witness should be admitted, the trial court determines whether there is prejudice, which “refers to the surprise in fact of the objecting party, and it is not dependent on the adverse nature of the testimony.” Id. at 1314. Binger also lists the following other factors to be considered:

(i) the objecting party's ability to cure the prejudice or, similarly, his independent knowledge of the existence of the witness; (ii) the calling party's possible intentional, or bad faith, noncompliance with the pretrial order; and (iii) the possible disruption of the orderly and efficient trial of the case (or other cases). If after considering these factors, and any others that are relevant, the trial court concludes that use of the undisclosed witness will not substantially endanger

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