Wright v. Schulte

• Citation: 441 So.2d 660
• Decision Date: 14 October 1983
• Docket Number: No. 82-2740,82-2740
• Parties: Wanda WRIGHT and Leland D. Wright, her husband, Appellants, v. Arnold SCHULTE, Jr., M.D., and Arnold Schulte, Jr., M.D., P.A., a professional association, Appellees.
• Court: Court of Appeal of Florida (US)

Page 660

441 So.2d 660

Wanda WRIGHT and Leland D. Wright, her husband, Appellants, v. Arnold SCHULTE, Jr., M.D., and Arnold Schulte, Jr., M.D P.A., a professional association, Appellees.

No. 82-2740.

District Court of Appeal of Florida,

Second District.

Oct. 14, 1983.

Rehearing Denied Dec. 2, 1983.

M. Blair Payne of Darby, Peele, Page & Bowdoin, Lake City, for appellants.

John D. Shofi and James L. Eskald of Marlow, Shofi, Ortmayer, Smith, Connell & Valerius, Tampa, for appellees.

DANAHY, Judge.

The plaintiffs in a medical malpractice suit appeal from an adverse final judgment entered after a jury verdict for the defendants. We reverse.

The plaintiffs brought this action to recover damages for the alleged negligence of Dr. Schulte in performing an abdominal hysterectomy on Wanda Wright. The plaintiffs claim that Dr. Schulte negligently cut and sutured Mrs. Wright's right ureter while performing the hysterectomy.

At trial, the plaintiffs called Dr. Douglas R. Shanklin as their expert witness. The issue before us is whether the trial judge erred in refusing to allow Dr. Shanklin to testify as an expert. The doctor testified that he is a physician from Gainesville, Florida, a graduate of Syracuse University and the New York State College of Medicine, from which he received an M.D. in 1955. He then interned at Duke University Hospital in North Carolina. The first six months of his internship were in pathology and the second six months were a mixed internship of obstetrics and pathology.

Dr. Shanklin then served in the United States Navy and became one of three ward officers for obstetrics and gynecology. After his Navy service, Dr. Shanklin returned to Duke University and took some additional training in pathology. He then returned to Syracuse to finish his board qualifications in pathology. In 1960, he accepted an academic appointment at the University of Florida in Gainesville and served there for seven and one-half years before accepting a professorship of obstetrics and gynecology and pathology at the University of Chicago.

Dr. Shanklin testified that while at the University of Chicago, he taught residents in obstetrics and gynecology. During the course of his employment at the University of Chicago, he instructed students in the procedure known as a total abdominal hysterectomy. He said his teaching role was aimed at the residents, the young doctors, who were training for ultimate board certification in obstetrics and gynecology. Dr. Shanklin testified that he was frequently called on to render an opinion or to give advice to physicians who were performing gynecological surgical procedures.

In 1978, Dr. Shanklin left Chicago and returned to Gainesville, Florida, to serve as Director of Laboratories at a Gainesville hospital. In March of 1980, he went into private practice, predominantly in consultive pathology or forensic pathology.

Dr. Shanklin is the author of a number of articles published in medical journals and is senior editor of the Journal of Reproductive Medicine.

Specifically, Dr. Shanklin testified that he is familiar with the procedure known as a total abdominal hysterectomy. As a senior medical student he was second assistant on twenty-five to thirty such procedures. In the Navy, he was specifically responsible for about twenty-five or thirty abdominal hysterectomies. He was first assistant on perhaps forty more. With reference to the claim of the plaintiffs in this case, Dr. Shanklin testified that he refreshed his memory by checking out a number of textbooks and atlases on the subject of abdominal hysterectomies.

On cross-examination, Dr. Shanklin admitted that he is not a gynecological surgeon performing abdominal hysterectomies. He has no staff privileges at any hospitals in the Gainesville area. In short, he is not an operating surgeon. Despite Dr. Shanklin's impressive array of credentials, the trial judge refused to allow him to testify, commenting that "we can't have a gynecologist testifying about how a surgeon should do surgery." To the trial judge, a doctor who does not do surgery cannot be permitted to "sit in judgment" on a surgeon. In this the trial judge was clearly in error.

Section 768.45, Florida Statutes (1981), specifies who may testify as an expert in a medical malpractice action. The statute provides in part as follows:

Any health care provider may testify as an expert in any action if he:

1. Is a "similar health care provider" pursuant to paragraph (a) or (b); or,

2. Is not a similar health care provider pursuant to paragraph (a) or (b) but, to the satisfaction of the court, possesses sufficient training, experience, and knowledge to provide such expert testimony as to the acceptable standard of care in a given cause.

It is undisputed that Dr. Shanklin is not a similar health care provider as that term is defined in the statute. Under such circumstances, the trial judge must determine whether the proffered expert possesses sufficient training, experience, and knowledge to provide expert medical testimony as to the acceptable standard of care in a given cause. The trial judge in the case before us did not do this; he simply rejected Dr. Shanklin on the ground that he is not a surgeon and, therefore, was incompetent to testify as to the standard of care in a case involving alleged negligence in the performance of a surgical procedure.

Our supreme court has commented that the rule is very well settled that, to give an opinion on medical questions, one may be qualified by study without practice, or by practice without study. Copeland v. State, 58 Fla. 26, 50 So. 621 (1909). Florida courts have made it clear that one need not be of the same specialty or branch of medicine, yet may be qualified to give expert...