Third DCA: Expert Witness Determinations Under the Highly Deferential Abuse-of-Discretion Standard
Third DCA: Expert Witness Determinations Under the Highly Deferential Abuse-of-Discretion Standard
The Florida Third District Court of Appeal recently ruled that the trial court did not abuse its discretion in striking Plaintiff’s causation expert in a medical malpractice case. In Berta Fertil v. University of Miami, Fertil sought treatment for ear pain while simultaneously exhibiting severe hypertension symptoms. Fertil subsequently suffered a stroke and brought a medical-malpractice claim asserting the treating medical team failed to refer her to the emergency room which caused her eventual stroke.
The Third DCA upheld the trial court’s striking of Plaintiff’s causation expert because: (1) the expert’s assumptions were unreliable given Plaintiff’s long medical history of treated and non-treated hypertension that the expert failed to consider; and (2) the expert’s opinion about a “hypertensive emergency” was unreliable given Plaintiff did not exhibit or complain about any symptom that would constitute an emergency.
As to prior history, Plaintiff’s expert admitted that he did not take into consideration her extensive history of chronic hypertension – including instances of severe hypertension – or her prior treatment for hypertension. He also did not recall ever asking Fertil about her past medical history when he interviewed her. Plaintiff’s expert also never reviewed her medical records evidencing Plaintiff’s history of, and treatment for, chronic hypertension.
As to a “hypertensive emergency,” Plaintiff’s expert testified that a hypertensive emergency occurs when a patient has a blood pressure reading at or above 180/120 and there is evidence of organ dysfunction. Symptoms of organ dysfunction include severe chest pain, severe headache, nausea, vomiting, or shortness of breath. While Plaintiff presented with a blood pressure reading of 233/150, Plaintiff’s expert acknowledged that she only complained of an earache when she presented at the clinic, which he conceded is not an attendant symptom associated with a hypertensive emergency. Therefore, the court found the Plaintiff’s expert’s opinion that the Plaintiff experienced a “hypertensive emergency” to be unreliable.
