The Florida Legislature has codified the Daubert standard for expert testimony in § 90.702, Fla. Stat. Pursuant to the statute, a qualified expert may provide opinion testimony regarding scientific, technical, or specialized knowledge that will assist the trier of fact in determining a fact at issue or understanding evidence if the testimony is based on sufficient facts and data and is the product of reliable principles and methods. Additionally, the expert witness must have reliably applied the principles and methods to the facts. The trial court therefore evaluates the qualifications of the proposed expert and ensures the testimony is relevant and based on a reliable foundation.
The First District recently considered whether the expert testimony of an emergency department physician as to the standard of care and the actions of emergency personnel responding to a 911 call was properly excluded in Baan v. Columbia County.
This tragic case arose from the death of an 11-month-old child. EMS responded to a call that the child was in respiratory distress. The child’s aunt sought the help of a neighbor because the boy was having trouble breathing. That neighbor said she held the child during the whole time EMS was present during the first visit. She also stated that EMS did not perform an exam or even touch the child on the first visit, but she had previously stated that a first responder had held a stethoscope to the child’s back.
The EMS report, however, indicated the child had normal vital signs. The report stated EMS personnel had been told that the child had been diagnosed with asthma and indicated that the child may have had an asthma attack before EMS arrived. EMS left within 10 minutes of arriving after showing the aunt how to use a nebulizer.
About 50 minutes later, there was another 911 call indicating the child was not breathing. Another neighbor, who was a trained emergency medical technician, assisted the aunt. This neighbor said he found the child on the floor with his face turning blue. He turned the child over to allow the mucus and fluid to drain and began CPR.
An EMS employee testified the child was cool to the touch and blue when they arrived for the second call. EMS suctioned the child’s airway, ventilated with a bag valve mask, and intubated him. He was transported to the hospital and then airlifted to Gainesville. He was pronounced dead on the following day.
The emergency room doctor hired as an expert by the child’s mother concluded that EMS breached the standard of care by failing to transport the child on the first run. He found that the child likely would have been treated for a lack of oxygen and survived if EMS had met the standard of care. He testified that the most critical breach was the failure to transport the child to a medical facility after the first call. This was a violation of EMS’ own protocol for “Respiratory Distress,” which required “[t]ransport ASAP.”
He also testified that EMS should have performed a more detailed assessment of the child, spent more time observing him, and taken him to the hospital for an examination by a doctor. The child should have been transported because he was reported to be in respiratory arrest at the time of the first call, he had a historical diagnosis of asthma, and he was, due to his age, unable to state a need for help.
The defendant moved to exclude the doctor’s testimony, arguing it was not reliable under Daubert because the doctor’s opinions were based on the assumption that the child had a detectable respiratory problem at the time of the first call because he experienced respiratory arrest within an hour. The trial court found that the doctor’s opinions were based on speculation and that he had rejected evidence he should have accepted as true, specifically the EMS report. The trial court found that the only evidence that spoke to the child’s respiratory status was the information EMS had recorded. The trial court held that the doctor’s testimony was inadmissible and granted the motion to exclude it. The defendant moved for summary judgment, and the trial court granted it. The plaintiff appealed.
The appeals court noted that an expert may rely on any view of disputed facts that the evidence supports to form his opinions. The expert did not have to accept the EMS report as true. The record did support an opinion that EMS had not performed an adequate evaluation, especially in light of the neighbor’s testimony. The appeals court noted that the “trial court made a factual determination that should have been left to the jury…” The testimony, the child’s history of breathing problems, and the fact the child did stop breathing shortly after EMS left the first visit support the doctor’s opinion that the child should have been transported to a hospital and would have lived if EMS had transported him.
The expert based his opinions not only on his own knowledge and experience but also on the defendant’s own protocol. The appeals court found that his testimony was the product of reliable principles and methods that were reliably applied to the facts. His findings met the Daubert standard, and his testimony was admissible. The appeals court reversed both the exclusion of the expert’s testimony and the summary judgment.
Expert testimony is particularly important in cases involving medical negligence. If you have been injured by the negligence of a health care provider, you need an experienced Florida medical malpractice attorney who understands Florida law involving the admissibility of expert testimony. Anidjar & Levine can help you obtain the right experts to review your case. Call us at 800-747-3733 to schedule an appointment.
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