FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
Application for Review of the Decision of the District Court
of Appeal - Direct Conflict of Decisions Fourth District -
Case No. 4D13-1985 (Palm Beach County)
M. Burlington and Andrew A. Harris of Burlington &
Rockenbach, P.A., West Palm Beach, Florida; Scott Schlesinger
and Linda A. Alley of Schlesinger Law Offices, P.A., Fort
Lauderdale, Florida, for Petitioner
M. Ramsey and Donna Krusbe of Billing, Cochran, Lyles, Mauro
& Ramsey, P.A., West Palm Beach, Florida; Elliot H.
Scherker, Julissa Rodriguez, and Stephanie L. Varela of
Greenberg Traurig, P.A., Miami, Florida; Scott Solomon and
Norman Waas of Falk, Waas, Hernandez, Cortina, Solomon &
Bonner, P.A., Coral Gables, Florida, for Respondent
the treating physician's deposition testimony regarding
how he would have treated Alexis Cantore had she arrived at
Miami Children's Hospital earlier was inadmissible, we
quash the Fourth District Court of Appeal's decision in
Cantore v. West Boca Medical Center, Inc., 174 So.3d
1114 (Fla. 4th DCA 2015).
2008, Alexis Cantore suffered permanent brain damage while
being treated for hydrocephalus at West Boca Medical Center
(WBMC) and Miami Children's Hospital (MCH). The Fourth
District described the background of this case as follows:
In 2006, two years before the illness that gave rise to this
case, when Alexis Cantore was twelve years old, she was
diagnosed with hydrocephalus, a condition resulting from a
build-up of excess cerebral spinal fluid within the cranium.
Her condition resulted from a benign tumor which grew and
blocked the outflow of the fluid which normally circulates
around the brain. In 2006, she underwent a procedure, known
as an Endoscopic Third Ventriculostomy ("ETV"), to
remove the blockage. The procedure, which was performed at
MCH, relieved the problem without causing Alexis any
However, scar tissue began to develop; a December 2007 CT
scan at WBMC showed fluid starting to accumulate around her
brain again. MRIs in March and June 2008 confirmed that a
blockage was occurring again. A doctor at MCH scheduled
Alexis for an ETV on July 28, 2008.
However, on July 3, 2008, at 2:30 p.m., Alexis began
experiencing painful headaches and vomiting. Alexis's
parents called MCH; a nurse told them to bring Alexis to the
nearest hospital for a CT scan if they could not make it to
MCH. Alexis was taken by ambulance to WBMC, arriving at 4:29
p.m. She was triaged and, on a three-tiered scale of
categories (emergent, urgent and non-urgent), was listed in
the middle category as "urgent." "Urgent"
patients are those who are sick and require care, but are
able to progress. In contrast, "emergent" patients
may deteriorate quickly and need interventions, while
"non-urgent" patients may have something like a
laceration or a bite, which requires care but is not a
medical emergency. The triage nurse on duty, in categorizing
Alexis as "urgent, " noted that she was awake and
alert, moving all extremities, had a normal neurological
exam, and a normal pupillary response, which was not
indicative of an impending brain herniation.
Dr. Freyre-Cubano ("Dr. Freyre"), a pediatrician
who was working in the WBMC emergency room, ordered a CT scan
STAT at 4:47 p.m., before examining Alexis. Dr. Freyre first
evaluated Alexis and noted that she had a normal pupillary
exam. A nurse also noted no deficits to Alexis's eyes.
Dr. Freyre performed another eye exam which showed that
Alexis's pupils were equal and reactive to light. A
radiologist read the new CT scan, compared it with the
previous one from December 2007, and confirmed in a report
that Alexis's condition was worsening, and that the
ventricles were larger than they had been on the previous CT
scan. The findings were "consistent with worsening
By 5:40 p.m., Dr. Freyre had reviewed the report on the CT
scan and called Dr. Sandberg, the on-call pediatric
neurosurgeon at MCH, regarding transferring Alexis to MCH. At
that time, Dr. Freyre told Dr. Sandberg that Alexis was
"stable." This became an important issue at trial
and . . . on appeal.
Dr. Freyre spoke with MCH's emergency department
physicians regarding transferring Alexis via MCH's
helicopter transportation service, known as
"LifeFlight." About twenty minutes later, the MCH
dispatcher for LifeFlight received the request for transport.
A WBMC nurse called the operations administrator at MCH, and
apparently learned that the pilots on shift were approaching
the maximum twelve hours of flight time and Alexis's
transport would be completed by the on-coming pilots.
LifeFlight's estimated arrival time was 7:00 p.m.
At 6:22 p.m., Alexis had an episode of vomiting, during which
her heart rate briefly dropped to 55. A WBMC nurse then
contacted a MCH Pediatric Intensive Care Unit
("PICU") nurse to update them. Dr. Freyre noted
that she had called the MCH emergency department physician
regarding Alexis's transfer and gave the necessary
Alexis was transferred to LifeFlight care at 7:25 p.m. She
was examined by a LifeFlight nurse. The neurological
assessment at that time was that Alexis was asleep,
non-verbal and oriented as to person. When she was awakened,
she was able to respond to her mother by nodding her head,
and her pupils were equal, round and reactive to light. She
had a Glasgow Coma Scale score of 13, with a perfect score
being 15. She had a decrease in her speech. The helicopter
lifted off at 8:09 p.m.
During the flight, Alexis suffered an acute decompensation.
By the time she landed at MCH at 8:25 p.m., she had suffered
a brain herniation. Accordingly, instead of taking Alexis to
PICU, hospital personnel took her straight to the ER. Alexis
arrived in very critical condition. Dr. Sandberg did an
emergent ventriculostomy, in which he drilled a hole into her
skull to insert a catheter, thereby relieving pressure on the
brain. This procedure saved her life. However, Alexis
suffered permanent brain damage; she has significant mental
impairment and must be fed through a tube. She will never be
able to work or live independently.
Id. at 1115-17.
2010, Alexis and her parents, Felix and Barbara Cantore, sued
WBMC and MCH, alleging that they had not provided proper
medical care for Alexis on July 3, 2008. The Cantores
presented testimony from several expert witnesses regarding
the timing of Alexis' transfer from WBMC to MCH and the
care she received from the LifeFlight crew. One of the
witnesses, Dr. William Loudon, a pediatric neurosurgeon,
testified that, based on his understanding of Alexis'
condition before she herniated, if she had come under his
care prior to the herniation, he would have performed an
emergency ventriculostomy. In Dr. Loudon's opinion, if
Alexis had received earlier relief from the build-up of
cerebrospinal fluid in her brain, the herniation could have
the Cantores' objection, counsel for WBMC was permitted
to publish to the jury the deposition of Dr. Sandberg, the
pediatric neurosurgeon at MCH who operated on Alexis, in
which Dr. Sandberg answered hypothetical questions as to how
he would have treated Alexis had she arrived at MCH an hour
or two earlier. The trial court also permitted Dr. Steven
White, WBMC's expert on pediatric emergency medicine, to
testify that Dr. Sandberg's statement as to what he would
have done had Alexis arrived at MCH earlier was consistent
with what other neurosurgeons would have done.
the jury returned a verdict in favor of WBMC and MCH. The
Fourth District affirmed, concluding that this Court's
decision in Saunders v. Dickens, 151 So.3d 434 (Fla.
2014), did not prevent the admission of Dr. ...