Special v. Baux, No. 4D08–2511.

CourtCourt of Appeal of Florida (US)
Writing for the CourtGROSS
Citation79 So.3d 755
Docket NumberNo. 4D08–2511.
Decision Date16 November 2011
PartiesFrank SPECIAL, as Personal Representative of the Estate of Susan Special, Appellant, v. Ivo BAUX, M.D., Ivo Baux, M.D., P.A. Pinnacle Anesthesia, P.L.; and West Boca Medical Center, Inc., Appellees.

79 So.3d 755

Frank SPECIAL, as Personal Representative of the Estate of Susan Special, Appellant,
v.
Ivo BAUX, M.D., Ivo Baux, M.D., P.A. Pinnacle Anesthesia, P.L.; and West Boca Medical Center, Inc., Appellees.

No. 4D08–2511.

District Court of Appeal of Florida, Fourth District.

Nov. 16, 2011.


[79 So.3d 756]

Philip M. Burlington and Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, and Gary M. Cohen and Andrew B. Yaffa of Grossman Roth, P.A., Boca Raton, for appellant.

Irene Porter and Kathryn L.S. Griswold of Hicks Porter Ebenfeld & Stein, P.A., Miami, and Eugene Ciotoli of Bobo Ciotoli Bocchino Newman Corsini White & Buigas, P.A., North Palm Beach, for appellees Ivo Baux, M.D., Ivo Baux, M.D., P.A., and Pinnacle Anesthesia, P.L.

Michael K. Mittelmark and K. Calvin Asrani of Michaud Mittelmark Antonacci & Marowitz P.A., Boca Raton, for West Boca Medical Center, Inc.

[79 So.3d 757]

En Banc
GROSS, J.

Frank Special, as the personal representative of his wife's estate, appeals a final judgment in favor of the defendants below, Dr. Ivo Baux, his related corporations, and West Boca Medical Center, Inc. Special raises three claims. We affirm on all three, but write to discuss Special's contention that the trial court erred in limiting the cross-examination of one of the defendants' expert witnesses.

In considering that issue, we take up this case en banc to reconsider other decisions of this court describing the harmless error test in civil cases. We hold that our cases using an outcome determinative, “but-for” test for harmless error are contrary to the Florida Supreme Court's interpretation of the harmless error statute. We recede from those cases and adopt the following standard for harmless error in civil cases: To avoid a new trial, the beneficiary of the error in the trial court must show on appeal that it is more likely than not that the error did not influence the trier of fact and thereby contribute to the verdict. Applying this test, we find that harmless error occurred in the trial court and affirm the judgment.

Facts

Susan Special became pregnant at age 38. Five weeks before her due date, she underwent a cesarean delivery. She was wheeled into the operating room at the Center's labor and delivery suite. Dr. Baux, the anesthesiologist, administered spinal anesthesia. A moment after the placenta was removed, Susan became unresponsive, her blood pressure fell precipitately, and she went into cardiopulmonary arrest. Dr. Baux and hospital staff attempted to revive her. She was temporarily resuscitated and transferred to the Intensive Care Unit, where another cardiopulmonary arrest occurred. Susan died five hours after the delivery.

Susan's estate sued the defendants for negligence. The claim was that Dr. Baux and the hospital were negligent in administering anesthesia, in monitoring her system and controlling her fluids during surgery, and in responding to her cardiopulmonary arrests. The defendants denied the allegations; they alleged instead that Susan's death was caused by amniotic fluid embolus (AFE), an allergic reaction from a mother's blood mixing with amniotic fluid, sometimes causing heart-lung collapse.

At trial, the plaintiff's expert testified that Susan died because of the departures from the requisite standard of care. The AFE diagnosis figured prominently. Most notably, the plaintiff called Dr. Barbara Wolf, the chief medical examiner of Palm Beach County at the time of Susan's death. Dr. Wolf conducted the autopsy on Susan and concluded that there was no evidence of AFE in her body. She explained that in a majority of cases where someone dies from AFE, the autopsy provides evidence of AFE, and that was not the case with Susan.

Special also presented the testimony of Dr. Mark Adelman, a pulmonary specialist, who was called in when Susan went into distress. He diagnosed AFE at the time based upon her clinical signs. Special asked him about the number of patients diagnosed with AFE at West Boca. He testified that he saw all such patients. He estimated that he saw about one or two cases per year at the center. During his testimony, Special was able to elicit national statistics showing incidence of AFE diagnosis at West Boca was about 15 times the rate elsewhere. Dr. Adelman, however, contended in his answers that he was only estimating the number of cases he

[79 So.3d 758]

saw and had no medical records to back up his recollection.

The defendants called Dr. Gary Dildy as their expert. Dr. Dildy opined that Susan died of AFE. He based this on his analysis of the medical records and tests. He explained that AFE is a diagnosis of exclusion. In other words, a doctor will look at all the circumstances and test results to determine likely causes for the patient's condition. Where no other circumstances account for the patient's distress during or after a delivery, a diagnosis of AFE can result.

On cross-examination, the plaintiff elicited from Dr. Dildy that the probability of AFE is approximately 1 in 20,000 births, but can range between 1 in 8,000 and 1 in 80,000. The plaintiff then tried to begin a line of cross-examination of Dr. Dildy about the reliability of the Adelman diagnosis that AFE had actually occurred in Susan, in light of the unusually high incidence of it at the hospital. The defendants' objection on relevancy grounds was sustained.

Special responded that this line of questioning was sought to impeach Dr. Adelman's testimony. The trial court sustained the objection, noting that the plaintiff could inquire about the statistical occurrence of AFE and make argument about disproportionate diagnoses in closing, but could not question Dr. Dildy using the substance of Dr. Adelman's testimony and its reliability to explore the trustworthiness of the AFE diagnosis. The court concluded that doing so would amount to improper collateral impeachment. We understand the trial court's characterization of the proposed impeachment as “collateral” as being merely another way of saying that the line of questioning was irrelevant. 1

The plaintiff proffered Dr. Dildy's testimony on this issue. The expert stated that, assuming Dr. Adelman's recollection of the incidence of AFE at the hospital was accurate, he would be concerned that AFE was being over-diagnosed at the Center. Yet even when confronted with statistics documenting this possibility, Dr. Dildy persisted in his opinion that Susan presented a case of AFE. He testified, “But this case here, we're talking about, it doesn't matter what all these other cases are, this case is the case, and this case is an amniotic fluid embolism.”

In closing argument, the plaintiff vigorously argued that the hospital either had an epidemic of AFE or was over-diagnosing it:

[Dr. Adelman] said, I see one to two a year at West Boca Medical Center. I didn't put the words in his mouth. He said, I see one to two a year at West Boca Medical Center.

....

[79 So.3d 759]

[I]f you take his numbers, and you believe they have this many amniotic fluid emboluses at West Boca Medical Center every year, it is somewhere between 15 and 80 times the national average they're diagnosing amniotic fluid embolus at West Boca Medical Center, between 15 and 80 times the national average.

So, it was either an epidemic, which there isn't, at West Boca Medical Center, or they're overdiagnosing amniotic fluid embolus. They're calling things that aren't amniotic fluid embolus, like he did in this case, ... because they're not bothering to look at autopsies, they're not bothering to look at other records, they're not bothering to investigate why....

It's not the epidemic, it's that he's overstating the diagnosis, and that's wrong, ladies and gentlemen, that is flat out wrong to do, and that's what they did in this case.

The jury found no negligence by the defendants and the trial court rendered a final judgment in their favor.

The Evidentiary Ruling

Again, the principal dispute at trial was the cause of Susan's death. In response to the plaintiff's claims of negligence, the defendants contended that regardless of their handling of the emergency from cardiopulmonary arrest, it was AFE that caused Susan's death. The presence of AFE was thus the essential issue at trial. The trial court abused its discretion in failing to allow the cross-examination.

Three sections of the evidence code provide the framework for evaluating questions of relevance. The general rule is that “[a]ll relevant evidence is admissible, except as provided by law.” § 90.402, Fla. Stat. (2009). “Relevant evidence is [defined as] evidence tending to prove or disprove a material fact.” § 90.401, Fla. Stat. (2009). Section 90.403, Florida Statutes (2009), establishes a limitation on the introduction of relevant evidence: “Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”

When, on cross-examination, a piece of evidence is offered to attack the credibility of a witness on a material issue, such evidence is “relevant” under section 90.401 because credibility is central to the truth seeking function of a trial. Under subsection 90.608(5), Florida Statutes (2009), any party “may attack the credibility of a witness by ... proof by other witnesses that material facts are not as testified to by the witness being impeached.”

The object of the proposed cross-examination of the defense expert was to elicit answers leading to proof of the cause of death, the crux of the lawsuit. Dr. Adelman and Dr. Dildy both testified that the cause of death was AFE. Counsel sought to impeach Dr. Adelman's diagnosis with evidence showing that the incidence of diagnosed AFE at West Boca, all done by Dr. Adelman, was grossly in excess of national statistics, thus impeaching Dr. Adelman. Where the diagnosis is one of exclusion,2 the frequency with which one comes to that conclusion...

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29 practice notes
  • Special v. W. Boca Med. Ctr., No. SC11–2511.
    • United States
    • United States State Supreme Court of Florida
    • November 13, 2014
    ...C.J.This case is before the Court for review of the decision of the Fourth District Court of Appeal in Special v. Baux, M.D., et al., 79 So.3d 755 (Fla. 4th DCA 2011). In its decision, the district court ruled upon the following question, which the court certified to be of great public impo......
  • Benjamin v. Tandem Healthcare, Inc., No. 4D10–881.
    • United States
    • Court of Appeal of Florida (US)
    • August 22, 2012
    ...address whether this error was harmless. This court's standard for determining harmless error was recently enunciated in Special v. Baux, 79 So.3d 755 (Fla. 4th DCA 2011) (en banc). We must be convinced by the party who benefits from the error “that it is more likely than not that the error......
  • Benjamin v. Tandem HealthCare, Inc., No. 4D10-881
    • United States
    • Florida District Court of Appeals
    • June 27, 2012
    ...address whether this error was harmless. This court's standard for determining harmless error was recently enunciated in Special v. Baux, 79 So. 3d 755 (Fla. 4th DCA 2011) (en banc). We must be convinced by the party who benefits from the error "that it is more likely than not that the erro......
  • R.J. Reynolds Tobacco Co. v. Hiott, Nos. 1D12–5956
    • United States
    • Court of Appeal of Florida (US)
    • January 3, 2014
    ...from the error, but we would affirm under any other appellate standard used in other civil cases. See generally, Special v. Baux, 79 So.3d 755, 768 (Fla. 4th DCA 2011) (en banc), rev. granted, Special v. West Boca Med. Ctr., 90 So.3d 273 (Fla.2012). This court has held that the test for har......
  • Request a trial to view additional results
29 cases
  • Special v. W. Boca Med. Ctr., No. SC11–2511.
    • United States
    • United States State Supreme Court of Florida
    • November 13, 2014
    ...C.J.This case is before the Court for review of the decision of the Fourth District Court of Appeal in Special v. Baux, M.D., et al., 79 So.3d 755 (Fla. 4th DCA 2011). In its decision, the district court ruled upon the following question, which the court certified to be of great public impo......
  • Benjamin v. Tandem Healthcare, Inc., No. 4D10–881.
    • United States
    • Court of Appeal of Florida (US)
    • August 22, 2012
    ...address whether this error was harmless. This court's standard for determining harmless error was recently enunciated in Special v. Baux, 79 So.3d 755 (Fla. 4th DCA 2011) (en banc). We must be convinced by the party who benefits from the error “that it is more likely than not that the error......
  • Benjamin v. Tandem HealthCare, Inc., No. 4D10-881
    • United States
    • Florida District Court of Appeals
    • June 27, 2012
    ...address whether this error was harmless. This court's standard for determining harmless error was recently enunciated in Special v. Baux, 79 So. 3d 755 (Fla. 4th DCA 2011) (en banc). We must be convinced by the party who benefits from the error "that it is more likely than not that the erro......
  • R.J. Reynolds Tobacco Co. v. Hiott, Nos. 1D12–5956
    • United States
    • Court of Appeal of Florida (US)
    • January 3, 2014
    ...from the error, but we would affirm under any other appellate standard used in other civil cases. See generally, Special v. Baux, 79 So.3d 755, 768 (Fla. 4th DCA 2011) (en banc), rev. granted, Special v. West Boca Med. Ctr., 90 So.3d 273 (Fla.2012). This court has held that the test for har......
  • Request a trial to view additional results

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