Saturday, January 7, 2012

Case from 1st DCA on Medical Malpractice


In Duss v. Garcia, 80 So. 3d 358, 2012 Fla. App. LEXIS 44 (Fla. 1st DCA 2012), the court affirmed a jury verdict in a medical malpractice action against an obstetrician for allegedly using a fetal vacuum extractor negligently during the delivery causing the newborn to sustain brain injury, leaving him with cerebral palsy. The appeal challenged two evidentiary rulings: (1) the exclusion on plaintiff’s standard of care testimony, and (2) allowing the defendants to bolster their experts’ opinions with authoritative publications.  The First District found no abuse of discretion in the trial court’s rulings.  
As to the first issue, the court stated that any testimony linking breach of the standard of care to the child’s neurological injury went to causation and exceeded the scope of matters on which the expert was qualified to give an opinion at trial.  In any event, plaintiff was allowed to present sufficient other testimony so as to suffer no prejudice from the ruling.  As to the second issue, the trial court did not abuse its discretion in allowing one defense expert to testify that in the medical literature, the expert had never heard of a vacuum assist causing the neurological damage suffered here.  Another expert was allowed to discuss the results of  a study by the National Institutes of Health.

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