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Medical Expert Not Required to Practice in Same Specialty as Defendant Physician

Written on Wednesday, April 13th, 2016 by Luke Brown
Filed under: ExpertWitness

The Florida 4th District Court of Appeal held in Weiss, et al vs. Pratt, (4D08-2179 and 4D10-593) that a testifying medical expert witness did not have to practice in precisely the same field as the treating physician in a medical malpractice action to allow testimony as an expert. The Court’s opinion interpreted a portion of Florida law that may provide some immunity for volunteer medical care. The Court suggested that the legislature may want to review the statute to clarify the immunity issue, but did not specifically address that issue in the opinion. It did, however, rely upon the existing language of the Florida statute in its analysis.

Factual Background

A high school football player was hurt in a football game. An orthopedic surgeon who had previously worked in an emergency room and had some training in pediatric orthopedics and sports medicine volunteered as the team physician.

When the injury occurred, the team physician examined the player, asked questions about what happened and what the player felt and saw (a flash of light). He did not recall asking the player about any period of unconsciousness or paralysis, but did not think that there was a spinal cord injury. After that, the doctor helped the player walk from the field. Paramedics arrived, put the player on a backboard and took him to a hospital. The doctor also went to the hospital, ordered tests and based on them and his clinical experience ruled out a spinal cord injury or a hematoma. He diagnosed a neck strain, a right shoulder contusion and prescribed pain medication.

A few days later, the player went back to the physician’s office but was seen by another doctor. By then, he could not lift his arm, flex his elbow and had lost significant strength in the arm. An MRI disclosed an epidural hematoma on the right side of his spinal cord and a contusion near C-5. At some point after that, the team doctor acknowledged that he should have put the player on a backboard on the field, rather than having him walk off of the field. The player sued the team doctor, the emergency room doctor and the hospital.

Trial and Appellate Theories

The trial court allowed expert testimony for the Plaintiff by an emergency room physician about treatment rendered on the football field. The jury found that the emergency room doctor and the hospital did nothing wrong. However, the jury did find against the team doctor and awarded a total of $750,000 as past and future damages.

The basis of the volunteer doctor’s appeal was that the Plaintiff’s expert should not have been allowed to give an expert opinion because he was neither an orthopedic surgeon nor a volunteer team physician and therefore, not “a similar heath care provider.” He also argued that the [Florida] immunity statute for volunteer doctors prevents an expert from another specialty from testifying.

Court’s Reasoning

The 4th DCA held that the team doctor was “similarly licensed” as the expert witness and therefore, the expert testimony was permissible. The court held that the “similarly licensed” reference related only to the introductory paragraph of the statute to include medical practice, osteopathic medicine, chiropractic medicine, podiatric medicine, and dentistry. Therefore, since the team doctor and the expert witness were both medical doctors, the expert testimony was allowable.

About Luke Brown

Luke Brown is a retired attorney, a husband, a father, and the owner of many pets. While practicing law, Luke represented policyholders in claims against their own insurers. He also represented insurers and others in matters before the Florida Department of Insurance. Prior to that, he was Senior Attorney for the Florida Department of Insurance. Later, Luke taught insurance law at Florida State University's Law School and in the College of Business. He has also written a treatise on Florida insurance law, edited the insurance topic of a legal encyclopedia, and served as a consultant on insurance for a major international information provider.

About Luke Brown

Luke Brown is a retired attorney, a husband, a father, and the owner of many pets. While practicing law, Luke represented policyholders in claims against their own insurers. He also represented insurers and others in matters before the Florida Department of Insurance. Prior to that, he was Senior Attorney for the Florida Department of Insurance. Later, Luke taught insurance law at Florida State University's Law School and in the College of Business. He has also written a treatise on Florida insurance law, edited the insurance topic of a legal encyclopedia, and served as a consultant on insurance for a major international information provider.