Florida Supreme Court: Expert can't rely on others' views

A dissenting opinion said medical experts should be allowed to consult fellow physicians when forming a position on the standard of care.

By Amy Lynn Sorrel — Posted Dec. 4, 2006

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Florida physicians who testify as medical experts will need to watch their words until they see how a recent ruling on expert testimony plays out.

The Florida Supreme Court ruled 5-2 that medical experts cannot base opinions on consultations with colleagues or other experts when they testify about the standard of care in medical liability cases.

Such secondhand testimony would amount to hearsay, the high court said in its Nov. 2 ruling. That could mislead a jury into believing that the witness' opinion has the approval of others in the field who themselves may not be qualified experts, justices concluded.

"Referring to consultations with other experts creates the danger of bolstering the credibility of the testifying expert's opinion without providing the opposing party the ability to effectively cross-examine the expert as to the basis for the opinion," Justice Barbara J. Pariente wrote for the majority.

Florida laws require medical experts to base their testimony on their own education, training and experience, justices said.

Physicians say the ruling sends mixed signals. They are pushing for higher quality medical expert testimony based on the accepted standard of care.

On the one hand, the court's standard will help filter out unqualified, "hired gun" experts whose only basis for testimony might be unfounded opinions, said Jeff Scott, associate general counsel to the Florida Medical Assn.

On the other hand, consulting other physicians "seems a perfectly logical type of analysis if you want to know what the community standard is to ask what people are doing," he said.

The FMA did not take a position in the case.

Determining the standard of care

The Florida court said there is no way trial courts can assess if outside professionals who experts consult are reliable and qualified when it tossed out the testimony of urologist Dana Weaver-Osterholtz, MD.

She testified for urologist Basil D. Fossum, MD. Florida resident Beth Linn sued Dr. Fossum for allegedly failing to diagnose her cut ureter. The injury occurred during a laparoscopic surgery that another doctor performed, court records show. After the surgery, hospital radiologists did a renal ultrasound, which showed "extensive fluid" above Linn's bladder and raised the possibility of a urine leak and a cut ureter, legal documents said.

Dr. Fossum performed a bilateral retrograde pyelogram and concluded that there was no urine leak, court papers state. He did not order further tests. Linn's injury ultimately was diagnosed in a subsequent CT scan, and a bilateral retrograde pyelogram was performed at another hospital. Dr. Fossum denies any wrongdoing.

Dr. Weaver-Osterholtz opined during her testimony that Dr. Fossum "performed all the tests that are normally performed by a urologist under the circumstances," and met the standard of care in his hospital work environment. But Dr. Weaver-Osterholtz said that in her tertiary care unit, the standard of care is different and that the standard would have required her to stent Linn's leak to drain the urinary system.

When plaintiff attorneys asked whether she based her opinion that Dr. Fossum acted within the standard of care on outside conferences with urologists working in a regular hospital setting, Dr. Weaver-Osterholtz said that was one factor, along with her review of Linn's medical records, pertinent literature and her own education, training and experience, court records said.

The high court concluded that it was only after Dr. Weaver-Osterholtz presented the case to other professionals that she determined if Dr. Fossum met the standard of care. Florida's statutes "do not permit experts to conduct a survey of a myriad of other experts or colleagues to derive a consensus," the court said.

Consulting colleagues

The court raised questions about allowing outside consultations in expert testimony.

"Would an expert be able to solicit opinions over the Internet? Would the battle of the experts become a battle over how many other experts were consulted?" Pariente wrote.

Martin B. Sipple, Linn's attorney, said the ruling will hold experts accountable for their opinions and set the bar for trial courts.

He acknowledged that the standard of care inherently involves the input of the medical community. "But that aspect comes into play under [the expert's] education, training and experience," Sipple said. The court's standard will prevent expert witnesses from skirting those qualification requirements because "ultimately the opinion has to be how the testifying expert would handle the case."

Dr. Fossum's attorney, Richard A. Warren, disagrees. Even though Dr. Weaver-Osterholtz' practice standards did not comport with her testimony, Warren said she had other valid bases for her opinion.

"It's a paradox, because the definition of the standard of care is not what the individual doctor would do, it's what the community of doctors recognizes is appropriate, so it's necessarily going to be based on conversations with others," he said.

But under the court's ruling, experts will not be able to tell a jury what other colleagues say the standard of care is and will have to be certain they have other foundations for their opinions, the FMA's Scott said.

In a dissenting opinion, Justice Charles T. Wells said the court should have carved out a ruling that applies to medical liability cases that "require knowledge by the expert of what others in a particular profession do under similar circumstances."

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Case at a glance

Beth Linn v. Basil D. Fossum, MD

Venue: Florida Supreme Court
At issue: Whether medical expert witnesses can testify that they discussed a case with other professionals in the same field to help form their opinion. The court said no.
Potential impact: Some doctors say the rule will hold medical experts accountable for their own opinions and deter "hired gun" experts from furthering meritless lawsuits. Other doctors say it will make it difficult for experts to testify to the acceptable standard of care if they can't base their opinion, in part, on consultations with other physicians.

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