Meyer v. Caruso

731 So. 2d 118, 1999 WL 235470
CourtDistrict Court of Appeal of Florida
DecidedApril 21, 1999
Docket98-0619
StatusPublished
Cited by7 cases

This text of 731 So. 2d 118 (Meyer v. Caruso) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Meyer v. Caruso, 731 So. 2d 118, 1999 WL 235470 (Fla. Ct. App. 1999).

Opinion

731 So.2d 118 (1999)

Donald C. MEYER, as Personal Representative of the Estate of Ann Meyer, deceased, Appellant,
v.
Phillip A. CARUSO, M.D., Appellee.

No. 98-0619.

District Court of Appeal of Florida, Fourth District.

April 21, 1999.

*119 John L. Walkden of the Law Offices of John L. Walkden, Fort Lauderdale, for appellant.

Gina E. Caruso of Hinshaw & Culbertson, Fort Lauderdale, for appellee.

FARMER, J.

During trial in this medical malpractice action, the judge struck the entire testimony of plaintiff's only expert witness on the standard of care and then directed a verdict in favor of defendant. Because we conclude that the basis for striking the testimony was legal error, we reverse.

Plaintiff's decedent suffered from cervical cancer in 1989 and underwent surgery by defendant, who appears to be a gynecology-oncology surgeon, to remove the affected organs. Afterwards she was given radiation treatment and continued in follow-up care by defendant. He ordered regular PAP smears in the years following 1989 but did not order any CT scans. In July 1994 she suffered a recurrence of her cancer, this time in her pelvis and abdominal wall. She passed away several months later.

In July 1996, her estate sued defendant for medical malpractice, alleging that he departed from the standard of care in failing during her follow-up care to order any CT scans and other diagnostic procedures, and that earlier diagnosis from such procedures in all probability would have saved her life. Plaintiff disclosed Dr. Barry Singer as the standard-of-care, medical expert. Attached to his notice was an affidavit executed by Dr. Singer in February 1996, which stated that after reviewing a listing of designated medical records of the patient he had formed an opinion that defendant had deviated from the standard of care and that this deviation proximately caused decedent's death. A pretrial stipulation was then filed by counsel with attached witness lists.[1] Trial began during the scheduled period, and Dr. Singer was called by plaintiff as the medical, standard-of-care expert.[2]

He testified that he took his undergraduate degree at Harvard and his medical degree at Johns Hopkins. He completed an internship and residency in internal medicine, followed by a fellowship in hematology and oncology, at the Graduate Hospital of the University of Pennsylvania. He is Board Certified in Internal Medicine, Hematology, and Oncology. He was the Chairman of the Oncology Division of Sacred Heart Hospital in Pennsylvania for 15 years. He specifically testified that he is currently a practicing physician:

"My practice is mainly a consultative practice. Seventy percent of my patients are cancer patients; the remainder are hematology and internal medicine *120 patients. They are generally seen regarding possible chemotherapy or many of them follow—just as follows [sic]—regarding treatment of this disease."

Defendant developed on cross examination a decided emphasis by Dr. Singer in employment on behalf of plaintiffs in medical negligence cases. Dr. Singer stated that he had reviewed more than 700 medical negligence cases, had given depositions in more than 200 cases, and had been qualified to testify as a medical expert in 30 states—several times in Florida. He conceded that about 95% of his forensic medicine was on behalf of plaintiffs.

He agreed with defense counsel's observation that "a careful and prudent physician expert like [himself] would want to see medical records first before drawing any opinions or conclusions about the care." As regards this case, he testified that records were sent to him and that he reviewed such records before he reached an opinion, stating flatly that he never gives an opinion without the records. He was confronted with a letter to him from plaintiffs counsel, however, that (omitting formalities) said:

"Thank you for taking your time to talk to me regarding your thoughts and impressions of the follow-up treatment of [decedent] after her cancer surgery by Doctor Phillip Caruso. I agree with you that he was probably a breach of the standard of care in that there appear to have been no additional follow-up test other than PAP smears, and this at the very least more likely than not reduced her chances of survival, or led to her untimely death.
"I am having the medical records of [decedent] shipped to you under separate cover. After you have had a chance to review them, and presuming your thoughts and impressions have not changed, I would appreciate your sending me a sworn statement as required by Florida Statutes as to whether or not there was a breach of the standard of care, and if so, why, and further whether that breach was the proximate cause of either [decedent's] untimely death, or more likely than not decreased her chances of survival." [emphasis supplied.]

The following cross examination then ensued:

Q. You hadn't reviewed any medical records when you reached that opinion, did you sir?"
A. I had to review records, sir.
Q. Show me where you have the correspondence sending you the records of 1996?
A. The records were sent to me. I never give an opinion without the records.
Q. Then why would [plaintiffs counsel] in his letter to you indicate that he was sending you records under separate cover?
A. He may have been sending me other records and after his deposition of [defendant] I was sent another set of records because [plaintiffs counsel] didn't have the complete set of records until [defendant's] deposition. I guess they were some patient witnesses.

Later he added: "It's a custom to review the records prior to my opinion. That's all I can say."

Turning to the subject of "similar medical specialty,"[3] Dr. Singer admitted that he had never been board certified in any area of surgery or obstetrics. No court has ever accepted him as an expert in *121 gynecology, obstetrics or gynecologic oncology. He admitted to never having any continuing education in gynecology. He conceded that he does not perform radical hysterectomies or, for that matter, surgery of any kind. He does not practice in follow up gynecological care. He does not initially diagnose cervical cancer. He has not published in the field of cervical cancer. Nor does he consider himself an expert in gynecological oncology because he is not board certified in that specific area. He would not see surgical patients who have not yet developed metastatic disease. He himself would not follow up a gynecological surgery patient through radiation.

On the other hand, he unequivocally testified that he is familiar with the standards for follow up, oncological care of cancer patients who have undergone radical hysterectomies and radiation treatment. While he does not do pelvic exams, he does know what these oncology patients require in such follow up care. He emphasized that he was the Chairman of the Tumor Board at the hospital for 15 years and thus dealt with all kinds of cancers.[4]

At the close of the testimony of Dr. Singer, defendant moved to strike his entire testimony and for a directed verdict. Defendant argued that Dr. Singer did not satisfy the requirements of section 766.102 because "he does not treat these cases, does not follow these patients, does not have any contact with them from the time of surgery until the time of recurrence."[5] In short the argument was that Dr.

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Bluebook (online)
731 So. 2d 118, 1999 WL 235470, Counsel Stack Legal Research, https://law.counselstack.com/opinion/meyer-v-caruso-fladistctapp-1999.