LEONNE CENATUS, AS NATURAL PARENT AND NEXT BEST FRIEND OF DAVID PIERRE, APPELLANT,
v.
NAPLES COMMUNITY HOSPITAL, INC.; FRANK FUMIA, M.D.; AND LAWRENCE J. CARLEY, M.D., APPELLEES

Fla. 2d DCA | 1997-01-17
No. 95-02707
THREADGILL, C.J., and WHATLEY, J., concur.
689 So. 2d 302 Florida District Court of Appeal, Second District (1997) Positive Treatment
Cited by 16 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

The appellate court reversed a jury verdict against a child who suffered severe medical complications, finding the trial court improperly limited expert testimony regarding the standard of care. While the error was harmless as to two defendants, it warranted reversal and remand as to a third.


Holding

Yes, the trial court erred by applying the amended statute. The cause of action accrued in 1986, so the statute in effect at that time should have been applied, allowing the expert to testify on the standard of care.


Headnotes

[1] A medical malpractice cause of action accrues when the injury is inflicted, not when the injured party discovers or should have discovered the malpractice.

[2] A statute amending the qualifications for expert witnesses in medical malpractice actions applies only to actions arising after its effective date.

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Key Quotes

“On this issue, we reverse as to Dr. Carley but affirm the verdict in favor of Dr. Furnia and Naples Community Hospital because as to these two defendants the error was harmless.”

This quote establishes the bifurcated outcome of the appeal, distinguishing between defendants for whom the error was prejudicial and those for whom it was not.

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Facts & Procedural History

David Pierre was taken to the hospital with a fever and vomiting. He was diagnosed with ear infections by Dr. Furnia and later with an upper respirato…

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Opinion of the Court
BLUE, Judge.

BLUE, Judge.

Leonne Cenatas, as parent and next friend of David Pierre, appeals an adverse jury verdict in this medical malpractice ease. Cenatas raises several issues on appeal. We find merit in her argument that the trial court erred by limiting the testimony of an expert witness regarding the standard of care. On this issue, we reverse as to Dr. Carley but affirm the verdict in favor of Dr. Furnia and Naples Community Hospital because as to these two defendants the error was harmless. On all other issues, we affirm without discussion.

Briefly stated, the facts of the case are as follows. In November 1986, David Pierre’s parents took him to the Naples Community Hospital Emergency Room because he was feverish and vomiting. Dr. Furnia diagnosed the problem as ear infections and prescribed Tylenol and Amoxicillin, an antibiotic. The following day, David’s parents took him to the Lee Memorial Hospital Emergency Room where he was seen by Dr. Carley. Dr. Carley ordered a complete blood count, a blood culture and a chest x-ray. Dr; Carley diagnosed David with an upper respiratory infection, prescribed Alupent, an asthma medication, and sent him home. Prom the testimony at trial, it appeared uncontrovert-ed that David had bacteremia, a bacterial infection in the bloodstream, when he was seen by Dr. Carley. The blood culture results, which were available two days later, showed that David tested positive for bac-teremia. Unfortunately, Lee Memorial failed to inform David’s parents of these results. If a child with bacteremia is given effective antibiotics before the bacteria reaches the spinal fluid, meningitis is preventable. In this case,- however, the meningitis “seeded,” which occurs when the bacteria infects the meninges and spreads to the spinal fluid. As a result of the meningitis that developed, David is deaf, mentally retarded and paralyzed. Cenatas brought suit against Dr. Fu-rnia, Naples Community Hospital, Dr. Carley and Lee Memorial Hospital. Lee Memorial settled prior to litigation.

At trial, Cenatas called Dr. Weintzen as an expert witness on the standard of care. The defense raised an objection regarding Dr. Weintzen’s qualifications. The trial court sustained the objection and ruled that Dr. Weintzen could testify as an expert on bac-teremia and bacterial meningitis but he could not testify as an expert on the standard of care. Cenatas argues that the trial court incorrectly limited this expert testimony because it applied the wrong version of the statute relating to the qualifications for an expert witness to testify regarding the standard of care.

Section 768.45, Florida Statutes (1985), provides the qualifications for expert witnesses who testify regarding the standard of care in medical malpractice actions. The defense conceded below that Dr. Weintzen would be qualified to testify as a standard of care expert under this version of the statute. But in 1988, the statute was amended and renumbered. The legislature added an additional qualification for expert witnesses who testify in actions against emergency room doctors. Section 766.102(6)(a), Florida Statutes (1988), requires that the expert witness must “have had substantial professional experience within the preceding 5 years while assigned to provide emergency medical services in a hospital emergency department.” The defense argued, and the trial court agreed, that Dr. Weintzen was not qualified under the amended statute because he had not been assigned to an emergency room within the preceding five years.

Section 766.102(6)(a) became effective on February 8, 1988, and applies only to actions arising after the effective date. Ch. 88-1, §§ 86-87, Laws of Fla. Cenatas argues that her cause of action arose in 1986, when the doctors treated David. We agree. In Florida Patient’s Compensation Fund v. Scherer, 558 So. 2d 411 (Fla.1990), the supreme court held that a medical malpractice cause of action accrues when the injury is inflicted. 558 So. 2d at 414 (quashing district court opinion that held a cause of action accrues when injured party discovers or should have discovered the malpractice). Although Scherer involved an award of attorney’s fees, we conclude that it is applicable to the present case. Because this cause of action accrued in November 1986 when David was treated, the trial court should have applied the version of the statute in effect at that time. Accordingly, it erred in excluding Dr. Weintzeris expert testimony regarding the standard of care.

Based on the proffer of Dr. Weintzeris testimony, we conclude that the evidence would not support the claims against Dr. Furnia and Naples Community Hospital. The testimony negated the claim that these parties were the proximate cause of the injury. Accordingly, we affirm the verdict in their favor. See Gooding v. University Hosp. Bldg., Inc., 445 So. 2d 1015 (Fla.1984) (holding that medical malpractice plaintiff must show the injury more likely than not resulted from defendant’s negligence).

As to Dr. Carley, however, we conclude that there was sufficient evidence of proximate cause to require reversal. Further, the record does not support a conclusion that the exclusion of Dr. Weintzeris testimony was harmless error as to Dr. Car-ley. Although Cenatas offered other expert testimony, it is clear from the record that Dr. Weintzen was intended to be the primary expert on behalf of the plaintiff.1 Even if expert testimony is cumulative, excluding such testimony is harmful because “[a] medical malpractice case is always necessarily a battle of expert witnesses.” Lake v. Clark, 533 So. 2d 797, 799 (Fla. 5th DCA 1988). Accordingly, we reverse the verdict in favor of Dr. Carley and remand.

Affirmed in part, reversed in part and remanded.

THREADGILL, C.J., and WHATLEY, J., concur. . A brief review of Dr. Weintzeris qualifications reveals why Cenatas intended to rely on his expert testimony. Dr. Weintzen is chief of the Division of Pediatric Infectious Diseases at Georgetown University Hospital and author of many authoritative articles, including "Occult Bacteremia in Toxic Appearing Febrile Infants.” Dr. Weintzen lectures emergency room physicians on the issues involved in this case and regularly consults with ER physicians. Finally, it is interesting to note that Dr. Carley's counsel attempted to employ Dr. Weintzen in this case but found that he had already been engaged by the plaintiffs.


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Cited By

  • …rial court’s instruction prohibiting the mention of prior lawsuits. Untoward practices of the kind at issue can be very effective in medical malpractice cases, which always involve “a battle of expert witnesses.” Cenatus v. Naples Cmty. Hosp., Inc., 689 So. 2d 302, 304 (Fla. 2d DCA 1997) (citing Lake v. Clark, 533 So. 2d 797, 799 (Fla. 5th DCA 1988)). We take this opportunity to note further concern regarding a comment from Dr. Tamton’s counsel as to the “Miami Beach” accent of one of Ms. Manhardt’s attorney…
  • Moyer v. Cheryl Reynolds, M.D., 780 So. 2d 205 (Fla. 5th DCA 2001)
    …ssarily 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. Id. at 799-800; see also Cenatus v. Naples Cmty. Hosp., Inc., 689 So. 2d 302 (Fla. 2d DCA 1997) (holding it reversible error to exclude doctor’s testimony even though other expert testimony was offered on the same topic where it was clear from the record that the doctor was intended to be the primary expert on behalf of the…
  • …27 So. 2d 378 (Fla. 3d DCA 2002); Darden v. Beverly Health & Rehabilitation, 763 So. 2d 542, 543 (Fla. 5th DCA 2000). . The statute in effect at the time the cause of action arises governs the action. See Cenatus v. Naples Community Hospital, Inc., 689 So. 2d 302 (Fla. 2d DCA 1997); L. Ross Inc. v. R.W. Roberts Construction Co., Inc. 466 So. 2d 1096 (Fla. 5th DCA 1985). . It is proper for a court to consider a subsequent amendment as clarifying legislative intent. See Finley v. Scott, 707 So. 2d 1112, 1116-…

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