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Gutierrez v. Vargas

Supreme Court of Florida

March 22, 2018

MONICA A. GUTIERREZ, etc., et al., Petitioners,
v.
JOSE LUIS VARGAS, M.D., etc., et al., Respondents.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

          Application for Review of the Decision of the District Court of Appeal - Direct Conflict of Decisions Third District - Case Nos. 3D13-1923 and 3D14-0048 (Dade County)

          Marvin Kurzban and Jed Kurzban of Kurzban, Kurzban, Weinger, Tetzeli & Pratt, P.A., Miami, Florida; and Bambi G. Blum of Bambi G. Blum, P.A., Miami, Florida, for Petitioner.

          Dinah Stein and Erik P. Bartenhagen of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, Florida; and Ilisa W. Hoffman of Ilisa W. Hoffman, P.A., Coral Gables, Florida, for Respondent.

          LABARGA, C.J.

         Petitioner Monica A. Gutierrez ("Monica"), together with her parents Javier and Monica E. Gutierrez (collectively "Petitioners"), seeks review of the decision of the Third District Court of Appeal in Vargas v. Gutierrez, 176 So.3d 315 (Fla. 3d DCA 2015), on the ground that it expressly and directly conflicts with decisions of other district courts of appeal on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons explained herein, we hold the trial court did not abuse its discretion when it allowed Monica's treating physicians to testify during trial as to their diagnostic opinions and permitted Petitioners to present rebuttal testimony from a second pathology expert. We further hold that any prejudice attributable to comments made during Petitioners' closing argument was insufficient to warrant a new trial. We therefore quash the decision of the Third District with respect to those issues.[1]

         BACKGROUND

         This case arises out of a medical malpractice action brought by Petitioners against Respondent, Jose Luis Vargas, M.D. (Dr. Vargas).[2] Dr. Vargas served as Monica's pediatrician from shortly after her birth in August 2000 until she was six years old. Petitioners claimed that, during that time, Dr. Vargas negligently failed to diagnose Monica with a chronic kidney disease known as C1q nephropathy, which severely damaged Monica's kidneys and forced her to undergo a kidney transplant in May 2007.[3] Dr. Vargas contended Monica suffered not from C1q nephropathy but from membranoproliferative glomerulonephritis (MPGN), [4] an acute kidney disease which could not have been diagnosed sooner. The parties relied heavily on expert testimony concerning pathology, pediatrics, and kidney disease to support their cases. During pretrial proceedings, the trial court entered a uniform order providing "[e]ach party is limited to one (1) retained expert per specialty. No other expert testimony shall be permitted at trial." The case went to trial in August 2012, and a mistrial was declared after three days. After a second, fourteen-day trial in April 2013, a jury awarded Petitioners $3, 831, 476 in damages. Petitioners then moved for additur, which Dr. Vargas accepted, and the trial court entered a final judgment award of $4, 101, 476. Dr. Vargas moved for a new trial on the issue of liability only, and the trial court denied the motion.

         Dr. Vargas appealed to the Third District Court of Appeal, asserting that the trial court erred by denying his motion for directed verdict because Petitioners' evidence was insufficient to prove he proximately caused Monica's injury. Vargas, 176 So.3d at 321-22. Dr. Vargas also contended he was entitled to a new trial on liability because the trial court had erroneously allowed Petitioners to present testimony from multiple expert witnesses in the same area of specialty in violation of a pretrial order, and because Petitioners' counsel made improper comments during closing arguments. Id. at 322, 326. The Third District affirmed the trial court's denial of Dr. Vargas's motion for directed verdict, but reversed and remanded for a new trial "based on the plaintiffs' violation of the 'one expert per specialty' rule and for materially misrepresenting evidence in closing arguments." Id. at 318.

         Petitioners sought review from this Court, arguing that the Third District's decision conflicts with Cantore v. West Boca Medical Center, Inc., 174 So.3d 1114 (Fla. 4th DCA 2015), [5] and other cases, because it improperly limits the testimony of treating physicians and rebuttal experts. In Cantore, the Fourth District held in part "that the jury should hear from a plaintiff's treating physicians-as in more than one, when there are more than one involved- regarding their care, recommendations, and medical decision-making." Id. at 1119 (citing Ryder Truck Rental, Inc. v. Perez, 715 So.2d 289, 290 (Fla. 3d DCA 1998)). Petitioners also argue that the Third District erred in holding that Petitioners' closing arguments "mischaracterized the evidence, were highly improper, and materially prejudiced Dr. Vargas." Vargas, 176 So.3d at 327.

         This review follows. A trial court's decision not to grant a new trial is reviewed for abuse of discretion. Brown v. Estate of Stuckey, 749 So.2d 490, 497-98 (Fla. 1999). The issue of whether a district court's decision on appeal "was contrary to the standards set forth by this Court . . . presents a pure question of law, and our review is de novo." Van v. Schmidt, 122 So.3d 243, 252 (Fla. 2013).

         THE "ONE EXPERT PER SPECIALTY" ORDER

         The Third District held the trial court abused its discretion by denying Dr. Vargas's motion for a new trial after it allowed Petitioners to call "not one, but four separate pathologists at trial to testify regarding the timing and diagnosis of [Monica's] disease." Vargas, 176 So.3d at 320 (emphasis removed). As the district court notes, the trial court had limited each party to one retained expert per specialty by pretrial order. Id.

         During trial, Petitioners offered the deposition testimony of Dr. Victor Pardo, a pathologist who examined a biopsy of Monica's kidneys before the transplant. Petitioners also presented Dr. Philip Ruiz, a pathologist who examined Monica's native kidneys after they were removed. Petitioners also presented two expert witnesses to testify with respect to the pathology of Monica's condition: Dr. Arthur Cohen testified during Petitioners' case-in-chief and Dr. Byron Croker testified as Petitioners' rebuttal expert.[6] Each of these four pathologists testified that Monica suffered from C1q nephropathy and gave an opinion as to the timing of the disease's progression. The Third District held the trial court abused its discretion by failing to enforce its pretrial order, and granted a new trial "because the plaintiffs were able to call four expert pathologists . . . and each pathologist was permitted to give his opinion on the nature and duration of Monica's illness, which unfairly prejudiced Dr. Vargas, who was limited to only one pathology expert on that subject." Id. at 322.

         A trial court's enforcement of its own pretrial order is reviewed for abuse of discretion, and reversal is appropriate only when the affected party can clearly show the abuse resulted in unfair prejudice. Binger v. King Pest Control, 401 So.2d 1310, 1313 (Fla. 1981). We hold that admitting the testimony of Dr. Pardo and Dr. Ruiz did not violate the pretrial order because they testified as Monica's treating physicians, not as expert witnesses. We further hold the trial court did not abuse its discretion by allowing Dr. Croker to testify in rebuttal.

         Treating Physicians

         Testimony given by treating physicians blurs the boundary between fact testimony and expert testimony because treating physicians and expert medical witnesses both possess "scientific, technical, or other specialized knowledge" which informs their testimony. § 90.702, Fla. Stat. (2017). Because of this specialized knowledge, an expert is permitted to render an otherwise-impermissible opinion about the evidence where such an opinion is helpful to the jury. § 90.703, Fla. Stat. (2017) (expert witness may give opinion or inference on ultimate issue); see also Estate of Murray v. Delta Health Group, Inc., 30 So.3d 576, 578 (Fla. 2d DCA 2010) (expert may testify to ultimate issue, but may not "render an opinion that applies a legal standard to a set of facts"). Experts assist the jury by testifying "regard[ing] a technical matter of which the jury [does] not have basic knowledge." State Farm Mut. Auto. Ins. Co. v. Bowling, 81 So.3d 538, 540 (Fla. 2d DCA 2012). Conversely, we have held that expert testimony should be excluded when the facts testified to "were within the ordinary experience of the jurors and did not require any expertise beyond the common knowledge of the jurors" to form a reasoned judgment of the facts. Johnson v. State, 393 So.2d 1069, 1072 (Fla. 1980).

         While an expert witness assists the jury to understand the facts, a treating physician testifies as a fact witness "concerning his or her own medical performance on a particular occasion and is not opining about the medical performance of another." Fittipaldi USA, Inc. v. Castroneves, 905 So.2d 182, 186 (Fla. 3d DCA 2005). This necessarily involves testifying with regard to the exercise of the treating physician's specialized medical knowledge as applied to other facts of the case, namely the plaintiff's symptoms. A treating physician is a fact witness, and testifies to past facts based on personal knowledge. Those facts involve a technical matter about which the jury lacks basic knowledge, see Bowling, 81 So.3d at 540-41, but they are facts nonetheless. The treating physician's perception of the plaintiff's symptoms, their diagnostic opinion, and their recommendation of a particular treatment are all facts in issue. An expert witness testifies with the benefit of hindsight, whereas a treating physician does not. See Ryder Truck Rental, Inc. v. Perez, 715 So.2d 289, 290-91 (Fla. 3d DCA 1998) ("Treating physicians do not acquire their 'expert knowledge for the purpose of litigation but rather simply in the course of attempting to make [their] patient well.' ") (alteration in original) (quoting Frantz v. Golebiewski, 407 So.2d 283, 285 (Fla. 3d DCA 1981))).

         Treating physicians are limited to their medical opinions as they existed at the time they were treating the plaintiff, while an expert may form new opinions in order to help the trier of fact decide the case. See Tetrault v. Fairchild, 799 So.2d 226, 227-28 (Fla. 5th DCA 2001) (ordering a new trial where treating physician gave opinion testimony based on MRIs he had not seen during treatment). Although a treating physician may possess the same qualifications as an expert witness, treating physicians form medical opinions in the course of rendering treatment and may therefore testify to the fact that they formed those opinions, and explain why they did so, provided such testimony is otherwise admissible. See Ryder, 715 So.2d at 290-91. For example, Dr. Vargas is also a pediatrician and has specialized technical knowledge beyond the ordinary experience of a lay juror. Neither party contends, however, that the "one expert per specialty" rule prevents Dr. Vargas from testifying as to the facts of how and why he diagnosed Monica or recommended a particular course of treatment, despite the involvement of his medical opinion in such testimony. Similarly, it was permissible for Dr. Pardo and Dr. Ruiz to testify in their capacities as Monica's treating physicians in order to allow the jury to determine the ultimate issue presented by the case in light of all the relevant facts.

         A witness's ability to testify as a treating physician is predicated on the witness's having provided the plaintiff with the medical treatment which is the subject of the witness's testimony. In its decision below, the Third District held that Dr. Pardo should be considered an expert witness rather than a treating physician because he "never saw or administered care to Monica or spoke directly to Dr. Paredes." Vargas, 176 So.3d at 319.[7] Similarly, the Third District also held Dr. Ruiz should not be considered a treating physician because "[s]imilar to Dr. Pardo, Dr. Ruiz did not ever see or administer care or treatment to Monica, did not communicate with Dr. Paredes, and did not offer an opinion as to the cause, identity, or duration of Monica's kidney disease." Id. The Third District further explained that Dr. Pardo and Dr. Ruiz testified during trial to findings they had not made during Monica's treatment, and "the first time the doctors had rendered these opinions was during their testimony at trial." Id. at 325.

         As the term suggests, a physician becomes a "treating physician" when the physician participates in treatment: that is, when the physician applies medical knowledge and judgment to render care or assist with care. The concept of "treatment" in modern medicine is very broad. Patients with complex or long-term medical problems may be treated by teams composed of several physicians, each with a different specialty, all of whom play an essential role in the patient's care. Pathologists are such specialists. A pathologist studies "all aspects of disease, but with special reference to the essential nature, causes, and development of abnormal conditions, as well as the structural and functional changes that result from the disease processes." Stedman's Medical Dictionary 1442 (28th ed. 2006) (defining "pathology"). Even though a pathologist may never see the patient in person, they may still be liable for medical malpractice committed against that patient. See Hickman v. Emp'rs' Fire Ins. Co., 311 So.2d 778, 779 (Fla. 4th DCA 1975) (malpractice case against pathologist who, examining patient's gallbladder, "negligently failed to notice the attached bile duct" which a surgeon had negligently removed along with the gallbladder); see also Variety Children's Hosp. v. Osle, 292 So.2d 382 (Fla. 3d DCA 1974) (malpractice case against pathologist who negligently commingled tissue samples, resulting in injury).

         Dr. Pardo and Dr. Ruiz may never have stood at Monica's hospital bedside, but they assisted with Monica's care by investigating the pathology of her condition and diagnosing the disease based on those investigations. Furthermore, although the Third District correctly states that Dr. Ruiz "examined Monica's kidney only after Dr. Paredes had already determined that Monica's kidneys could not be saved and after Monica's kidneys were removed, " 176 So.3d at 325, Dr. Ruiz performed his examination for the purpose of identifying and diagnosing the disease from which Monica suffered, in order to ensure she continued to receive the proper treatment and that the disease which caused her native kidneys to fail would not harm her transplanted kidney. The timing of his examination in no way alters the purpose for which it was done. Had Dr. Ruiz negligently failed to diagnose a disease process which later harmed Monica's transplanted kidney, he himself could have been liable for providing deficient medical care. See Hickman, 311 So.2d at 779 (pathologist negligently examined gallbladder which had already been removed from patient); see also Osle, 292 So.2d at 383 (pathologist ...


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