AMANDA C. BARRIO, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF MARTIN ORTEGA, DECEASED, APPELLANT,
v.
JAMES A. WILSON, M.D.; EMERGENCY MEDICAL ASSOCIATES OF TAMPA BAY, P.A.; AND ST. JOSEPH'S HOSPITAL, INC., APPELLEES
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In a medical malpractice case arising from a patient's death, the trial court erroneously admitted testimony from an unqualified pulmonary specialist who lacked the requisite emergency room experience to opine on the standard of care. The appellate court found the error harmless because other qualified defense experts provided the same testimony.
The trial court erred in admitting Dr. Fulkerson's testimony because he did not satisfy the statutory qualification requirement under Florida Statutes section 766.102(6)(a) that expert witnesses in emergency room malpractice cases must have had substantial professional experience within the preceding five years while assigned to provide emergency medical services in a hospital emergency department. However, the error was harmless because other qualified defense experts provided cumulative testimony on the standard of care.
[1] Expert medical testimony in malpractice actions against emergency room physicians is limited to physicians with substantial professional experience within the preceding f…
[2] A more specific statute governing expert testimony in emergency room physician malpractice cases controls over a more general statute applicable to health care providers.
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Join FLexlaw to unlock all legal intelligence“the court shall admit expert medical testimony only from physicians ... who have had substantial professional experience within the preceding 5 years while assigned to provide emergency medical services in a hospital emergency department”
The statutory requirement for expert witness qualification in emergency room malpractice cases that Dr. Fulkerson failed to satisfy.
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Join FLexlaw to unlock all legal intelligenceMartin Ortega died, and his personal representative Amanda Barrio sued emergency room physician James A. Wilson for medical malpractice. At trial, Dr.…
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NORTHCUTT, Judge.
The personal representative of Martin Ortega’s estate, Amanda Barrio, filed a lawsuit alleging that Ortega’s death stemmed in part from medical malpractice committed by emergency room physician James A. Wilson. The case was tried before a jury, which found for the defendants. On appeal, Barrio complains that the trial court improperly allowed an unqualified expert witness to opine that Wilson did not violate the standard of care for emergency room physicians. We agree that the court should not have permitted this testimony, but we conclude that the error was harmless.
Section 766.102(6)(a), Florida Statutes (1997), provides in pertinent part that in malpractice actions against emergency room physicians “the court shall admit expert medical testimony only from physicians ... who have had substantial professional experience within the preceding 5 years while assigned to provide emergency medical services in a hospital emergency department.” The witness in question, Dr. Fulkerson, was a specialist in pulmonary medicine. He was not an emergency room physician, did not hold himself out as an expert in emergency medicine, and had not served on the staff in an emergency room department in at least 15 years. Although Dr. Fulkerson frequently consulted on emergency room cases and saw patients in that setting, he had not been assigned to provide emergency medical services in a hospital emergency department within the previous five years.
Therefore, under the plain terms of the statute he did not qualify to testify on the standard of care for emergency room physicians. See Cenatus v. Naples Community Hospital, Inc., 689 So. 2d 802 (Fla. 2d DCA 1997); see also Franklin v. The Public Health Trust of Dade County d/b/a Jackson Memorial Hospital, 759 So. 2d 703 (Fla. 3d DCA 2000) (affirming grant of new trial on ground of improper admission of expert testimony of surgeon who lacked substantial experience providing emergency medical services in a hospital emergency department within last 5 years).
The defendants argue that Dr. Fulkerson was qualified to testify under section 766.102(2)(c)2., which provides that one who is not a “similar health care provider” as the defendant nevertheless may testify if he or she, “to the satisfaction of the court, possesses sufficient training, experience, and knowledge as a result of practice or teaching in the specialty of the defendant or practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine.” That provision, however, is part of the statute’s subsection (2), which applies to malpractice suits against health care providers generally. Subsection (6), the more specific provision applicable to suits against emergency room physicians, controls. See Moore Int’l Trucks, Inc. v. Foothill Capital Corp., 560 So. 2d 1301 (Fla. 2d DCA 1990).
Put another way, resort to the exception provided in the more general statute would render the specific statute related to emergency room physicians meaningless. This we are not permitted to do. See Levine v. Levine, 734 So. 2d 1191, 1194 (Fla. 2d DCA 1999). Therefore, it was error to permit Dr. Fulk-erson’s testimony as to the standard of care.
Even so, after reviewing the record we deem the error harmless. See School Bd. of Broward County v. Surette, 394 So. 2d 147, 152 (Fla. 4th DCA 1981) (noting that improperly admitted expert testimony may be considered harmless error where there is other sufficient evidence to justify the jury reaching the conclusion supported by the opinion of the expert). Dr. Fulker-son’s testimony concerning the standard of care was cumulative of the more detailed standard of care testimony offered by two other defense expert witnesses, and resulted in no undue prejudice to the plaintiff. See Cross v. Lakeview Center, Inc., 529 So. 2d 307, 310 (Fla. 1st DCA 1988).
Affirmed.
BLUE, A.C.J., and SALCINES, J., Concur.
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Edwards v. The Sunrise Ophthalmology ASC, LLC, 134 So. 3d 1056 (Fla. 4th DCA 2013)…laims has caused differing outcomes in cases attempting to apply the term “similar specialty.” See, e.g., Weiss v. Pratt, 53 So. 3d 395 (Fla. 4th DCA 2011) (emergency room physician qualified to testify against orthopedic surgeon); Barrio v. Wilson, 779 So. 2d 413 (Fla. 2d DCA 2000) (pulmonologist not qualified to testify against emergency room physician). As we have previously noted: “[wjhat is clear is that nothing is clear about ‘similar specialty.’ ” Weiss, 53 So. 3d at 400. In Weiss, we found no error i…
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Samuel J. Goss, D.O. v. Permenter, 827 So. 2d 285 (Fla. 5th DCA 2002)…ide emergency medical services in a hospital emergency department. Thus an expert in a medical malpractice action against an emergency room physician must meet specific statutory requirements not applicable to other physicians. See Barrio v. Wilson, 779 So. 2d 413 (Fla. 2d DCA 2000). Whether Dr. Charash was qualified to give an opinion against an emergency room physician is clearly a collateral and irrelevant matter. Thus, the trial judge properly sustained the Permenters’ objection to this line of questioni…
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Michael C. Weiss, D.O. v. Ancel Pratt, Jr., 53 So. 3d 395 (Fla. 4th DCA 2011)…arch program in the same or similar specialty. § 766.102(5), Fla. Stat. (2003). It is this statute, which governs the requisite qualifications of an expert witness. Recognizing the importance of this statute, the doctor relies on Barrio v. Wilson, 779 So. 2d 413, 414 (Fla. 2d DCA 2000). There, the court held that a pulmonary specialist was not qualified to testify on the standard of care for an emergency room physician. Because of the specific holding in Bardo, however, we find it unpersuasive. In Bardo, t…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The Sch. Bd. OF Broward Cnty. v. Surette, 394 So. 2d 147 (Fla. 4th DCA 1981)
- Conner v. State, 734 So. 2d 1191 (Fla. 5th DCA 1999)
- Cross v. Lakeview Ctr., Inc., 529 So. 2d 307 (Fla. 1st DCA 1988)
- Denise v. Franklin, 759 So. 2d 703 (Fla. 3d DCA 2000)
- Moore Int'l Trucks, Inc. v. Foothill Cap. Corp., 560 So. 2d 1301 (Fla. 2d DCA 1990)