State Supreme Court Rules That Neurosurgeon’s Deposition Testimony About Hypothetical Setting Was Reversible Error

The Florida Supreme Court has held that the trial court committed reversible error by allowing testimony by deposition of a patient’s treating neurosurgeon. The doctor testified at trial about what he would have done had the patient arrived at the hospital 1-2 hours earlier.

Alexis Cantore, 12 years old at the time, suffered a brain herniation resulting from hydrocephalus. Alexis and her parents sued two hospitals claiming that her untimely transport to a higher-level hospital led to a delayed treatment and late brain surgery to attempt to release the pressure on the brain.

At the jury trial, over the plaintiff’s objections, the first hospital offered the deposition testimony of the pediatric neurosurgeon who operated on Alexis. The doctor answered hypothetical questions about how he would have treated Alexis had she arrived at the second hospital 1-2 hours earlier. The jury found in favor of the defendants.

The intermediate appellate court affirmed the verdict for defendants finding that another state law and case decision did not preclude admission of the neurosurgeon’s deposition testimony at trial. However, in reversing, the state supreme court noted that under the defendant’s cited case law, testimony that a subsequent treating physician would not have treated a patient differently had a defendant acted within the applicable standard of care is irrelevant and inadmissible.

In this case, the state supreme court found the neurosurgeon’s testimony about how he would have treated Alexis under different circumstances as to be not distinguishable from the subsequent treating physician in the relied upon case by defendants. The purpose of the neurosurgeon’s testimony was to break the chain of causation and show that Alexis would have suffered the brain herniation notwithstanding the alleged delay in transporting her to the second hospital. But for this testimony, the state supreme court added, the defendants could not have made such an argument.

Consequently, the supreme court reversed and remanded the case for a new trial.

The attorneys representing the Cantore family were Philip Burlington, Andrew Harris, Scott P. Schlesinger and Linda A. Alley.

Cantore v. West Boca Medical Center, Inc., 242 So. 3d 1032 (Fla. 2018).

Kreisman Law Offices has been handling medical malpractice lawsuits, wrongful death cases, hospital negligence lawsuits, physician negligence cases, brain injury lawsuits and birth trauma injury cases for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Homewood, Highland Park, Alsip, South Holland, Blue Island, Park Forest, Richton Park, Chicago Ridge, Hickory Hills, LaGrange, South Barrington, Chicago (Noble Square, North Park, North Ravenswood, Pulaski Park, Irving Park, Jefferson Park, Lakeview, Lakewood-Balmoral, Lawndale, Little Village, Back of the Yards, Ashburn, Archer Heights, Albany Park, DePaul, Fuller Park, Hollywood Park, Humboldt Park), Mount Prospect, Maywood, Deerfield, Crestwood and Cicero, Ill.

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