How many experts should parties be entitled to use to prove or defend against liability in a medical malpractice case? “As many as they want,” “as many as they need,” or “as many as have relevant and non-cumulative opinions to offer” are possible answers, but judges like to keep cases moving and neither side wants to call fewer experts than the opposing side. To balance those concerns, judges sometimes limit each side to “one expert per medical specialty.”
A recent decision by the Florida Supreme Court addresses a case in which a trial judge permitted four pathologists to testify for the plaintiff. The District Court of Appeal concluded that their testimony was cumulative and improper. Relying on the distinction between treating physicians and retained experts, the Supreme Court disagreed.
Facts of the Case
Monica Gutierrez sued Dr. Jose Luis Vargas, contending that he negligently failed to diagnose her chronic kidney disease. Gutierrez alleged that she required a kidney transplant that could have been avoided if Dr. Vargas had made the diagnosis earlier.
While Gutierrez alleged that Dr. Vargas should have diagnosed her condition as Clq neuropathy, Dr. Vargas contended that Gutierrez suffered from a different kidney disease — membranoproliferative glomerulonephritis (MPGN) — a rapidly progressing condition that could not have been diagnosed sooner.
At trial, Gutierrez introduced the deposition testimony of Dr. Victor Pardo, a pathologist who examined Gutierrez’ kidney tissue prior to her transplant. Gutierrez also offered the testimony of Dr. Philip Ruiz, a pathologist who examined Gutierrez’ kidneys after they were removed. Dr. Pardo and Dr. Ruiz agreed that Gutierrez kidneys revealed evidence of Clq neuropathy.
Another pathologist, Dr. Arthur Cohen, testified for Gutierrez as a retained expert. He agreed that Gutierrez suffered from Clq nephropathy and gave an opinion about Dr. Vargas’ failure to diagnose the disease correctly. Dr. Cohen was not available to give rebuttal testimony, so Gutierrez called another retained pathologist, Dr. Byron Croker, to testify as a rebuttal expert.
After 14 days of testimony, the jury agreed that Dr. Vargas was negligent. It returned a verdict in Gutierrez’ favor of more than $3.8 million.
Lower Court Rulings
Prior to trial, the judge entered an order limiting each party to one retained expert per medical specialty. Dr. Vargas complained that the trial court failed to enforce that ruling when it allowed Gutierrez to call four pathologists as experts. The defense argued that the court’s failure to enforce the order was unfair since the defense presented the testimony of only one pathologist in accordance with the court’s order.
The trial court concluded that the testimony of Dr. Pardo and Dr. Ruiz did not violate the pretrial order because they were not retained experts. Rather, they were treating physicians who examined Gutierrez’ kidneys as part of their normal duties as pathologists. The trial court made an exception to the order for the testimony of Dr. Croker as a rebuttal expert since Dr. Cohen was unavailable.
The Florida District Court of Appeal granted Dr. Vargas a new trial. The appellate court agreed with Dr. Vargas that he was unfairly limited to one expert pathologist when Gutierrez was allowed to present similar testimony from four pathologists. Since the District Court of Appeal’s decision arguably conflicted with other Florida appellate decisions, the Florida Supreme Court agreed to resolve the conflict.
Treating Physicians as Expert Witnesses
The Florida Supreme Court began its analysis by noting the fuzzy distinction between treating physicians who testify as fact witnesses and physicians who testify as expert witnesses. Courts in most states draw that distinction, but their insistence that treating physicians testify as fact witnesses rather than expert witnesses is the kind of legal fiction that helps judges reach the correct decision for reasons that bring more confusion than coherence to the law of expert witnesses.
Treating physicians are plainly experts. When they testify about the treatment they rendered, they are testifying about facts. But treating physicians are generally allowed to testify about why they rendered that treatment, which includes giving a diagnosis. A diagnosis is opinion testimony.
Diagnostic opinions are about facts, but all expert opinions are opinions about facts. Experts offer opinions about facts so that juries can resolve factual disputes. The particular disease that damaged a kidney is a fact, but two physicians may well have different opinions about that fact. The standard of care that applies to treatment is a fact, but doctors often disagree about the appropriate standard of care. It is up to a jury to decide the facts after listing to the evidence, which may include expert opinions about the facts.
Experts and lay witnesses both testify about facts. Experts, however, testify about facts that are beyond the ordinary knowledge of lay witnesses. Since a lay person would not be able to examine a kidney and determine the disease process that damaged it, an informed opinion about the disease process is necessarily an expert opinion, even if it is rendered by a treating physician. Since a lay person would not know the standard of care that should be followed when diagnosing kidney disease, an informed opinion about the correct standard of care is an expert opinion.
The Distinction Between Treating Physicians and Retained Experts
While recognizing that treating physicians give expert testimony, the Florida Supreme Court maintained the fiction that treating physicians are fact witnesses. The court held that physicians who opine about another doctor’s performance are testifying as experts while physicians who opine about a condition they diagnosed or treated are testifying about facts. That isn’t really true, but the distinction is important for a different reason.
Treating physicians are not hired to give opinions. They are hired to treat patients. The rules that typically constrain expert testimony are meant to assure that retained experts give helpful information to the jury, given the perceived risk that retained experts will be tempted to say whatever they are paid to say. Those perceived risks do not usually apply to treating physicians, who typically form expert opinions long before litigation is contemplated.
The court recognized and relied on that distinction, despite muddying the water by maintaining the illusion that treating physicians testify about facts when they are actually giving expert opinions. All of the pathologists who testified offered opinions about Gutierrez’ kidney disease. Some of those opinions differed, as expert opinions often do. But the retained experts formed their opinions for litigation while the two pathologists who examined Gutierrez’ kidneys before a lawsuit was commenced formed their opinions in the course of performing their ordinary medical duties.
As the Florida Supreme Court recognized, it may be improper for a treating physician to testify about certain facts (such as another physician’s breach of the standard of care) without being designated as an expert, but the impropriety does not rest on a fictitious distinction between fact testimony and expert testimony. Rather, treating physicians who are not designated as experts are properly limited to opinions about facts they discerned while rendering treatment, as opposed to facts (such as another physician’s breach of a standard of care) that were not part of the diagnosis and treatment they rendered as part of their job duties.
The District Court of Appeal thought that Dr. Pardo and Dr. Ruiz did not testify as treating physicians because they did not treat Gutierrez and because they expressed opinions that they did not articulate in their pathology reports. Yet both Dr. Pardo and Dr. Ruiz formed those opinions (whether articulated or not) while they were performing their ordinary duties as pathologists. The Florida Supreme Court correctly decided that the trial court acted properly by admitting their testimony.
The Florida Rules of Civil Procedure allow a judge to limit the number of expert witnesses a party may call to avoid cumulative testimony. That rule serves the useful purpose of assuring that a party with deep pockets cannot call multiple experts who all say the same thing, while a party with limited resources is forced to rely on a single expert.
The rule against cumulative testimony only applies to testimony that is so needlessly cumulative that its prejudicial impact outweighs its probative value. The Florida Supreme Court noted the distinction between cumulative testimony and confirmatory testimony. Like many legal distinctions, this one is difficult to define; judges presumably know the difference when they see it.
Fortunately, the distinction is reasonably clear in this case. Dr. Pardo examined tissue taken from Gutierrez’ kidney before her transplant. Dr. Ruiz examined Gutierrez’ kidneys after they were removed. Each doctor prepared his own slides and examined different tissues before arriving at the same opinion. Since the pathologists performed separate tests of separate specimens, Dr. Ruiz’ testimony was not cumulative to Dr. Pardo’s.
Nor was Dr. Cohen’s testimony cumulative, since he based his testimony on a variety of evidence, not just on the work done by Dr. Pardo and Dr. Ruiz. That all of the pathologists reached the same opinion for different reasons tended to make their opinions confirmatory rather than cumulative.
The District Court of Appeal concluded that it was improper to admit the testimony of Dr. Croker as a rebuttal witness, in part because the testimony was “totally cumulative” and in part because he was the fourth pathologist to testify for the plaintiff.
The Florida Supreme Court ruled that Dr. Croker testified only about evidence that Dr. Cohen did not address in his testimony. Dr. Croker discussed slides that Dr. Cohen had taken but did not mention in his testimony. Since the defense pathologist testified about those slides, Dr. Croker’s testimony was appropriate rebuttal evidence.
Finally, the state supreme court concluded that the trial court did not abuse its discretion by allowing Dr. Croker to testify, despite its pretrial order limiting each party to one retained expert per specialty. Dr. Cohen was not available to testify as a rebuttal expert, and the defense was well aware of that fact in advance of trial. The trial court did not allow the defense to take advantage of his absence by introducing new and unrebutted evidence that Dr. Cohen did not address in his testimony. Allowing Dr. Croker to testify served the interest of justice and was not an abuse of the judge’s discretion.