By: Dominic F. DeCesare, Civil Clinic Legal Intern
As my evidence professor, Mark Dobson, would always say during lectures: “Read the rules, learn the rules, love the rules!” This piece of advice is true not only for law students hoping to memorize and understand hearsay and the voluminous exceptions, but also for trial lawyers diligently preparing for trial. The rules of evidence determine what evidence is admissible to the jury during trial and what evidence is not. When calling witnesses at trial, knowing and understanding the rules is important for trial lawyers because the rules provide guidelines as to what questions the lawyer may (or may not) ask the witness while they testify. Further, the rules of evidence have restrictions for witnesses who are called to testify at trial as either lay persons or as experts. Recently, the Florida Supreme Court provided clarification regarding the issue of treating physicians as expert witnesses in Gutierrez v. Vargas, 239. So. 3d 615 (Fla. 2018).
By way of background, in regard to lay persons, Section 90.701, Florida Statutes, provides:
If a witness is not testifying as an expert, the witnesses’ testimony about what he or she perceived may be in the form of inference and opinion when the witness cannot readily, and with equal accuracy and adequacy, communicate what he or she perceived to the trier of fact without testifying in terms of inferences or opinions and the witness’s use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party and the opinions and inferences do not require a special knowledge, skill, experience, or training.
As it relates to expert witnesses, Section 90.702, Florida Statutes, provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case.
To summarize, lay persons may only testify about what they have perceived, in addition to inferences and opinions drawn from that perception. The limitation to this rule is that if the witnesses’ testimony includes inferences or opinions, that testimony must not prejudice the opposing party or require a special knowledge, skill, experience or training. Take, for example, a lay witness testifying as to a simple fact: whether the light was red or green in a motor vehicle collision case. On the other hand, expert witnesses may only testify on issues that require a scientific, technical or other specialized knowledge that will assist a judge or jury in determining a fact at issue, and only if the testimony is based upon sufficient facts or data, is based on reliable principles and methods, and the witness has applied those principles and methods to the facts of the present case.
In the context of medical malpractice cases, the crux of the plaintiff or defendant’s case is to prove their theory of the case, often through the use of physician testimony. This is typically done by use of experts. But what if a physician is testifying with respect to what they observed and what their opinions were during the course of the treatment of the patient? Certainly a physician possesses scientific, technical or other specialized knowledge, but what if their testimony is not offered to assist the judge or jury in understanding the evidence or determining a fact in issue? Rather, what if the physician’s testimony is merely to help explain to the jury how the physician treated the patient or why the physician came to the conclusions he or she came to during treatment, without opining as to the treatment of other physicians? These are the types of questions the Florida Supreme Court recently addressed in Gutierrez v. Vargas, 239. So. 3d 615 (Fla. 2018) as further discussed below.
In Gutierrez, the plaintiffs sued the minor child’s pediatrician for negligently failing to diagnose the plaintiff with a chronic kidney disease, which severely damaged the plaintiff’s kidneys and forced her to undergo a kidney transplant. The defendant pediatrician contended that the plaintiff suffered from an acute kidney disease which could not have been diagnosed sooner. During the pre-trial hearings, the trial court entered an order providing that each party was limited to one retained expert per specialty. The jury returned a verdict of $3,831,476. After the plaintiff’s moved for an additur, the trial court entered a final judgment award of $4,101,476.
The defendant appealed to the Third District Court of Appeal. One of the contentions made by the defendant was that the trial court erroneously allowed plaintiffs to present testimony from multiple expert witnesses in the same area of specialty, in violation of the pretrial order. The Third District Court of Appeal held that the trial court abused its discretion by denying the defendant’s motion for a new trial after it allowed plaintiffs to call four pathologists to testifying regarding the timing and diagnosis of the plaintiff’s disease. The Third District remanded for a new trial based on the plaintiff’s violation of the trial court’s “one expert per specialty” rule. The plaintiffs then sought review from the Florida Supreme Court arguing that the Third District’s decision improperly limited the testimony of treating physicians and rebuttal experts. The plaintiffs relied on a decision from the Fourth District Court of Appeal, Cantore v. West Boca Medical Center, Inc., 174 So. 3d 1114 (Fla. 4th DCA 2015), which held in part “that a jury should hear from a plaintiff’s treating physicians—as in more than one, when there are more than one involved—regarding their care, recommendations, and medical decision-making.”
As alluded to above, the Florida Supreme Court noted that “[t]estimony given by treating physicians blurs the boundary between fact testimony and expert testimony because treating physicians and expert medical witnesses both possesses scientific, technical, or otherwise specialized knowledge which informs their testimony.” Gutierrez, 239 So. 3d 615 at 622 (citing Fla. Stat. § 90.702).
The court distinguished the two types of witnesses by noting “[w]hile an expert witness assists the jury to understand facts, a treating physician testifies as a fact witness ‘concerning his or own medical performance on a particular occasion and is not opining about the medical performance of another.’” Gutierrez, 239 So. 3d 615 at 622 (citing Fittipaldi USA, Inc. v. Castroneves, 905 So. 2d 182, 186 (Fla. 3d DCA 2005). The experts testimony “involves testifying as to the treating physician’s specialized medical knowledge as applied to other facts of the case, namely the plaintiff’s symptoms.” Id. at 622. On the other hand, a treating physician is a fact witness and testifies to past facts based on personal knowledge. “The treating physician’s perception of the plaintiff’s symptoms, their diagnostic opinion, and their recommendation of a particular treatment are all facts in issue.” Id. Thus, the main distinction the court draws between the two types of witnesses is that:
[a]n expert witness testifies with the benefit of hindsight, whereas a treating physician does not, [and] . . . . [t]reating physicians are limited to their medical opinions as they existed at the time they were treating the [patient], while an expert may help the trier of fact decide the case.
While it would seem that treating physicians could overstep the boundaries of the scope of their testimony as lay witnesses, the court drew a bright line as to the propriety of its admissibility:
If a treating physician testified as to the medical opinion formed for the purpose of litigation rather than treatment [of a patient], then the mere fact that the physician once treated the [patient] would not prevent the doctor from being considered an expert witness. . . . Again, the determination turns on the role played by the witness: if the treating physician gives a medical opinion formed during the course and scope of treatment in fulfillment of their obligation as a physician, then the physician is a fact witness, albeit a highly qualified one. If, however, the treating physician gives an opinion formed based on a later review of medical records for the purpose of assisting a jury to evaluate the facts in controversy, the physician acts as an expert witness, and should be considered as such.
Id.; Gutierrez, 239 So. 3d 615 at 624 (citing Lion Plumbing Supply, Inc. v. Suarez, 844 So.2d 768, 771).
In applying the law to the facts of the case, the court found that plaintiff’s two physicians—a pathologist who examined a biopsy of the plaintiff’s kidneys before the transplant and another pathologist who examined the plaintiff’s native kidneys after they were removed—did not support the defendant’s conclusion that their opinions were formed in preparation for trial rather than for purposes of treatment. The first physician testified that his pathology study of the plaintiff’s kidneys showed “proliferative glomerulonephritis with C1q deposits,” his estimate of how long the plaintiff’s condition had taken to develop, and made clear that he formed this conclusion as part of his pathology study. The court reasoned that the questions asked of this pathologist were limited to the pathology study of the plaintiff’s kidney tissue that the physician actually conducted, and were not based on later review of other records. The other physician’s testimony was limited to his own pathology of the plaintiff’s tissue and both testified to the facts of their participation in the plaintiff’s treatment, which necessarily included their diagnostic reasoning and conclusion.
In conclusion, the Florida Supreme Court held that “the trial court did not abuse its discretion when it allowed the plaintiff’s treating physicians to testify during trial as to their diagnostic opinions and permitted plaintiff’s to present rebuttal testimony from a second pathology expert.” Id. at 620. The decision of the Third District Court of Appeal was quashed. This case is important in the context of medical malpractice cases because it lays out bright line rules for lawyers in regards to the roles their witnesses can play (i.e., whether the witness is a treating physician or an expert). This case stands for the proposition that while a treating physician may have exceptional scientific, technical or other specialized knowledge that would otherwise classify them as an expert, if the scope of their testimony is limited to facts regarding treatment of the patient, then a party may not be bound by a pre-trial order limiting the number of expert witnesses.