FLORIDA LAW WEEKLY

VOLUME 40, NUMBER 27

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“Expert Limits Can Be OK in Med Mal.”

CASES FROM THE WEEK OF JULY 3, 2015

TRIAL COURT IN A MED MAL CASE DID NOT ABUSE ITS DISCRETION IN LIMITING THE PRESENTATION OF EXPERT TESTIMONY TO ONE EXPERT FOR STANDARD OF CARE AND ONE FOR CAUSATION IF PROPER PARAMETERS ARE NOT MET.

Woodson v. Go, 40 Fla. Law Weekly D1499 (Fla. 5th DCA June 26, 2015):

The plaintiff in a medical malpractice suit appealed a judgment entered for the defendants. The main issue on appeal was the limitation of expert witnesses.

Generally, limitation of expert testimony is a matter of discretion for the trial court. It is reviewed for an abuse of discretion.

The plaintiff argued that due to the unique nature of medical malpractice cases, it is almost always improper to limit expert witness testimony based on cumulativeness. The plaintiff relied on a case called Lake v. Clark, 533 So. 2d 797 (Fla. 5th DCA 1998), for the proposition that all qualified expert opinion in medical malpractice cases should generally be permitted even if it is cumulative to other evidence.

The court en banc receded from the Lake decision. It found that there is no reason to permit litigants in medical malpractice cases to have almost the unfettered right to present to cumulative expert witness testimony. It noted that Section 90.612(1)(b) expressly requires trial judges to exercise reasonable control over the presentation of evidence to avoid the needless consumption of time as well as Section 90.403 to provide that relevant evidence is admissible, if its probative value is substantially outweighed by a needless presentation of cumulative evidence.

The court refused to accept plaintiff’s invitation to reverse the case based on the failure to follow the Lake decision, and instead reviewed it for abuse of discretion.

Under that analysis, the trial court did not abuse its discretion in ruling to preclude the plaintiff from calling two interventional cardiologists. The court found the record reflected that the original expert was able to give standard of care and other testimony, that the second expert gave causation, and any other evidence would have been cumulative.

The court further admonished that the trial judge should have given the parties more notice than simply ruling on the morning of trial about excluding the testimony. Litigants are entitled to fair notice of restrictions on expert testimony so they can prepare their cases accordingly.

Finding that the plaintiff was able to have both experts opine that plaintiff’s injury was caused by the defendants (without having one expert repeat similar testimony of another), he failed to demonstrate that he was prejudiced and therefore the court affirmed the ruling.

ALJ, CHARGED WITH DETERMINING THE AMOUNT OF AN INJURED BOY’S MEDICAID LIEN, COULD NOT ENTERTAIN AN ARGUMENT THAT THE AGENCY FOR HEALTH CARE ADMINISTRATION WAS NOT ENTITLED TO REPAYMENT OF ITS LIEN AT ALL, AND THAT ARGUMENT WAS RAISED FOR THE FIRST TIME AT THE FINAL HEARING.

State of Florida v. Hunt, 40 Fla. Law Weekly D1489 (Fla. 1st DCA June 24, 2015):

After a child experienced a neurological injury and severe disabilities arising from birth complications, he received medical care paid by AHCA through Medicaid. AHCA recorded a Medicaid lien and was automatically subrogated to and assigned rights to recover medical expenses from liable third parties pursuant to Section 409.910(6). The plaintiffs later filed a wrongful death case and received a substantial settlement.

After the settlement, the parties disputed the amount that AHCA should be reimbursed. Initially, the plaintiffs sought to reduce the lien based on equitable distribution but then at the final hearing, argued that AHCA should receive nothing, because its lien had expired and had not yet sought to enforce its subrogation and assignment rights under Section 409.910(11)(h). The ALJ agreed.

The court reversed. It found the ALJ’s responsibility under the statute was to resolve the amount of the medical expenses reimbursable to AHCA, irrespective of the unalleged statute of limitations defense that the plaintiffs might assert in an enforcement proceeding. When the plaintiffs originally invoked DOAH’s jurisdiction under Section 409.910(17) many months before the deadline cited in the final order, they did not attack AHCA’s right to reimbursement. Rather, plaintiffs conceded an obligation to reimburse AHCA out of the settlement funds designated for medical expenses. Under the plaintiffs’ petition, all that remained in the parties’ dispute, was for DOAH to decide between competing views on the correct reimbursement amount per the statute’s provision of an exclusive method for challenging the amount of third-party benefits payable to the agency (Section 409.910(17)(b)). Finding plaintiffs’ argument untimely, the court reversed and remanded for the ALJ to determine the amount payable to AHCA in satisfaction of the medical expenses paid by Medicaid.

COURT DISQUALIFIES LAW FIRM FROM REPRESENTING PARTY ON APPEAL, WHERE ATTORNEY ASSOCIATED WITH APPELLATE COUNSEL HAD BEEN INVOLVED IN THE REPRESENTATION OF THE OPPOSING PARTY IN THE TRIAL COURT PROCEEDINGS, AND COURT FOUND HAD OBTAINED INFORMATION THAT COULD BE USED AGAINST THE CLIENT ON APPEAL (SHE HAD WRITTEN THE MOTION FOR SUMMARY JUDGMENT ON APPEAL).

ATC Logistics v. Jackson, 40 Fla. Law Weekly D1511 (Fla. 1st DCA June 26, 2015):

While disqualification of a party’s attorney is an extraordinary remedy that should be granted only sparingly, in this case, where the attorney who left one firm and went to another acquired material protected by Rules 4-1.6 and 4-1.9(b) and (c), the firm handling the appeal where the attorney went to work had to be disqualified.

While the litigant had argued that the attorney had not acquired confidential information, the scope of information protected by Rule 4-1.10(b) is broad and requires disqualification when a lawyer acquires information protected by Rules 4-1.6 and 4-1.9(b). The general rule is that lawyers shall not reveal information relating to the representation of a client subject to exceptions set forth in Rule 4-1.9 (providing that a lawyer who formally represented a client shall not thereafter use information relating to the representation to the disadvantage of the former client).

Here, the court found it was clear that the attorney had been privy to legal strategy, and that information was material to the appeal. Thus, the court disqualified the firm who now employed the attorney with such knowledge.