Florida medical malpractice cases are often a battle of experts: doctors and other health professionals who give their opinions on whether a defendant acted reasonably and, if not, whether his or her negligence caused the injury suffered by the plaintiff. In Duss v. Garcia, the Third District Court of Appeal makes clear that it’s not just about getting experts to testify, it’s about getting the right experts to testify.
The guardian of Daniel Duss, a minor child suffering from cerebral palsy, filed a medical malpractice lawsuit, alleging that obstetrician Martin Garcia negligently used a fetal vacuum extractor during Duss’ delivery, which resulted in brain injury.
At trial, each side presented expert testimony. Plaintiff’s four experts testified that Garcia breached the relevant standard of care by unnecessarily using the vacuum extractor six times during the delivery, likely causing an ischemic stroke (i.e., a blockage of an artery to the brain) that ultimately caused Daniel’s brain injury. Defendant’s experts, on the other hand, testified that Garcia’s use of the vacuum extractor was within the standard of care, and could not have caused the ischemic stroke. Instead, these experts concluded that Duss’ injury was a result of “placental abnormality.”
The jury entered a verdict in favor Garcia, finding that either he was not negligent or that his negligence did not result in Duss’ injury.
On appeal, the court upheld the jury decision, finding that the trial court properly ruled that expert witness Dr. Barry Schifrin could not testify as to whether or not the vacuum procedure actually caused Duss to suffer an ischemic stroke. Schrifin is an obstetrician/gynecologist, not a neurologist, and therefore was not qualified to testify as an expert regarding Duss’ possible neurological injury, the court ruled.
In other words, Schifrin was qualified to testify as to the standard of care for doctors in birth delivery, but was not qualified to testify as to the neurological injuries that may be caused as a result of a breach of that standard, according to the court.
The court further noted that Plaintiff was able to present other evidence linking the vacuum use to Duss’ injury, including the testimony of a pediatric neurologist, who concluded that use of the vacuum can result in brain injury similar to that suffered by Duss. “Thus even if the trial court had erred in excluding Dr. Schifrin’s testimony, Appellant suffered no prejudice from the court’s ruling,” the court found.
As this case makes clear, medical malpractice law frequently involves complex litigation and conflicting expert witness testimony, not to mention tense negotiations with medical malpractice insurance companies. An experienced personal injury attorney is vital to pursuing a claim after a medical error causes injury. If you or a loved one was injured by poor medical care, contact the South Florida medical malpractice attorneys at Anidjar & Levine. Anidjar & Levine represent clients throughout the area, including in Hialeah, Hollywood and Pompano Beach, and offer a free initial consultation from our Fort Lauderdale offices. The firm works on a contingency fee basis, which means the firm does not charge you any legal fees unless you win or settle your case. Call the firm today at 800-747-3733.
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