Treating Doctor Says He Would Have Done the Same Thing Anyway

In the case of Cantore v. West Boca Medical Center, Inc., 174 So. 3d 1114 (Fla. 4th DCA 2015), the court permitted testimony from a subsequent treating doctor who said that he would have treated the patient the same even if the previous physician had exercised adequate care. Alexis Cantore was diagnosed with a benign brain tumor two years before the incident giving rise to the lawsuit occurred. She had been diagnosed with hydrocephalus which is a condition that results from a building up of excess cerebral spinal fluid within the skull. Thereafter, she underwent a procedure called an Endoscopic Third Ventriculostomy (ETV) and scar tissue developed later as would be expected. A subsequent CT scan revealed more accumulation of fluid on her brain and another surgery was scheduled despite complaints of headaches and vomiting. Prior to the scheduled surgery, she went to West Boca Medical Center as an urgent patient. The pediatric ER physician, Dr. Freyre-Cubano, ordered a CT that confirmed worsening hydrocephalus. Thereafter, Dr. Freyre consulted a neurosurgeon, Dr. Sandberg but described her condition as "stable." Dr. Freyre then arranged for a helicopter to take Alexis to the hospital where Dr. Sandberg was located. During the flight, Alexis developed an acute decompensation in her neurological condition and, upon arrival, Dr. Sandberg did an emergent ventriculostomy. While this procedure saved her life, she was left with severe permanent brain damage. Dr. Sandberg's testimony that is at issue in this case surrounds whether the outcome would have been different if Alexis had been transported at least a few hours earlier. Dr. Sandberg's response was that the outcome would have been the same because if Alexis had arrived alert and oriented, then he would have scheduled her for surgery either that night or the next day. Further, he said that he would have done an emergency ventriculostomy anyway when she decompensated because that occurred before the surgery would have occurred anyway.

Understandably so, the Cantores argued that the hypothetical opinions by Dr. Sandberg were improper. However, the court held that the opinions of Dr. Sandberg were proper as he was a treating physician as opposed to a pure expert.

While medical malpractice cases are frequently a battle of the experts, the opinions given by the treating physicians are admissible. In this particular case, Dr. Sandberg gave the opinion that the outcome would have been the same because an acute herniation was rare and unexpected. Only if he had been told by Dr. Freyre that she was acutely worsening would Dr. Sandberg's opinion have changed. The role of the jury is to determine what a reasonably prudent physician would have done under the same circumstances. This is often described as the standard of care in Florida.

With respect to this particular case, the jury found no liability on the defendant doctor and the Fourth DCA upheld that verdict.