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Duss v. Garcia

Florida Court of Appeal, First District

January 6, 2012

Daniel DUSS, A Minor Child, by and Through Regions Bank, The Guardian of his Property, Appellant,
Martin A. GARCIA, M.D., an Individual; North Florida Obstetrical & Gynecological Associates, P. A., a Florida for Profit Professional Association, Appellees.

Rehearing Denied March 2, 2012.

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[Copyrighted Material Omitted]

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Rebecca Bowen Creed of Creed & Gowdy, P.A., Jacksonville, for Appellant.

Shelley H. Leinicke and Richard E. Ramsey of Wicker, Smith, O'Hara, McCoy & Ford, P.A., Ft. Lauderdale, for Appellees.


This is an appeal from a final judgment in a medical malpractice lawsuit.

Daniel Duss was diagnosed with cerebral palsy shortly after his birth on December 3, 2002. In 2003, a lawsuit was filed on his behalf alleging that the obstetrician who delivered him, Martin A. Garcia, M.D., was negligent in using a fetal vacuum extractor during the delivery, and that his negligence caused Daniel to sustain a brain injury, leaving him with cerebral palsy. When the case finally made it to trial in August 2010, after earlier ending in mistrial, the plaintiff put on four medical experts— one on standard of care and three on causation. The gist of their testimony was that Dr. Garcia breached the standard of care by needlessly using the vacuum extractor six times to deliver Daniel, and that his actions caused Daniel to suffer an ischemic [1] stroke which, in turn, caused brain injury. The defendants' experts testified that Dr. Garcia's use of the vacuum extractor fell within the standard of care, that use of the device cannot cause an ischemic stroke, and that Daniel's strokes and brain injury resulted from a placental abnormality. The jury rendered a verdict in favor of the defendants, answering the question, " Was there negligence on the part of Martin A. Garcia, M.D., which was a legal cause of loss, injury, or damage to Daniel Duss?" in the negative. The trial court entered final judgment accordingly.

Appellant seeks reversal of the final judgment and a new trial on two grounds. First, Appellant argues the trial court incorrectly excluded expert testimony establishing that Dr. Garcia's breach of the standard of care created obstetrical conditions known to increase the likelihood of the type of neurological injury Daniel suffered. Appellant thus was " unable to establish a link in the chain of causation between Dr. Garcia's negligence and the ischemic stroke [Daniel] ultimately suffered." Second, Appellant asserts that the trial court allowed Appellees to improperly bolster their experts' opinions on causation using authoritative publications. In so doing, Appellant argues, the court effectively diminished the credibility of his experts on the ultimate issue of liability. For the following reasons, we affirm the final judgment.

I. Excluded Testimony of Standard of Care Expert, Dr. Schifrin

Dr. Barry S. Schifrin, an OB/GYN, was Appellant's only expert on standard of care. He testified that, based on his review of the labor and delivery reports, no circumstances were present to make a vacuum-assisted delivery necessary. Daniel was " making progress" and showed " no obvious fetal distress or any fetal problem" prior to use of the vacuum. According to Dr. Schifrin, the fetal heart rate tracings showed no evidence of oxygen deprivation such that vacuum intervention was necessary. Under the prevailing standard of care, these circumstances, together with the fact that this was a high-risk delivery of twins at only thirty-five weeks' gestation, indicated a vacuum extractor should not be used. He opined further that Dr.

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Garcia's application of the device six times in approximately thirty minutes was unreasonable.

Dr. Schifrin explained that misuse of the vacuum extractor could stretch the arteries leading to the infant's brain and, because of the increased pressure from the vacuum, diminish blood flow to the organ. He testified that after Dr. Garcia began using the vacuum, Daniel's fetal heart rate tracings showed decelerations, which likely represented ischemic events. When Appellant's counsel asked Dr. Schifrin for his opinion on whether " obstetrical circumstances or conditions existed which could result in ischemic injury," Appellees' counsel objected and, after conducting voir dire, argued that the doctor was not qualified to give expert opinion on the cause of Daniel's neurological injury. The trial court sustained Appellees' objection. But it permitted Dr. Schifrin to testify that " the evidence of ischemia on the ...

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