Linn v. Fossum

Citations: 894 So. 2d 974; 2004 WL 2330812Docket: 1D03-4152

Court: District Court of Appeal of Florida; October 18, 2004; Florida; State Appellate Court

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The case involves Beth and Anthony Linn appealing a final judgment in favor of Dr. Basil Fossum in a medical malpractice suit related to the failure to diagnose an injury caused by Dr. Dennis Lewis during a diagnostic laparoscopy. During the procedure, Dr. Lewis accidentally severed Mrs. Linn's ureter, leading to a leak that caused an infection. The plaintiffs challenged the admissibility of the testimony from Dr. Weaver-Osterholtz, the defense's medical expert, arguing it was based on hearsay from other doctors. The court ruled that her testimony was properly admitted, as it was partly based on her own assessment and experience, along with her review of medical records and depositions. Although Dr. Weaver-Osterholtz acknowledged a higher standard she would apply to her own practice, she stated that Dr. Fossum met the standard of care required. The plaintiffs' motion to exclude her testimony was denied, and despite their objections during trial, she did not disclose the specifics of her consultations with other urologists. Ultimately, the appeal was affirmed, siding with the trial court's decision to allow Dr. Weaver-Osterholtz's testimony.

During cross-examination, plaintiffs challenged Dr. Weaver-Osterholtz regarding her discussions with other urologists and the foundation of her opinion that Dr. Fossum's watch-and-wait approach adhered to the standard of care. Dr. Weaver-Osterholtz confirmed that her opinion was partly based on these discussions and also on Mrs. Linn's medical records, witness depositions, relevant literature, and her professional education and experience. The jury ruled in favor of Dr. Fossum, and post-trial motions concerning the admissibility of the expert testimony were denied, leading to a judgment in his favor. The plaintiffs appealed this judgment, asserting that expert opinions can be based on inadmissible evidence, as established in Florida case law and the Florida Evidence Code. This code allows experts to formulate opinions based on facts or data that may not be admissible in court if such information is typically relied upon by experts in the field. The court noted that the nature of medical care standards requires understanding communal professional insights, making it acceptable for Dr. Weaver-Osterholtz to consult with peers during her opinion formation. The ruling emphasizes that consulting with other healthcare professionals is integral to understanding and applying the legal definition of the standard of care.

Plaintiffs argue that Dr. Weaver-Osterholtz's opinion should have been excluded as it relied solely on hearsay from other urologists, depriving them of cross-examination opportunities. They reference section 90.704, which prohibits admitting opinions based entirely on inadmissible evidence. However, it allows opinions based partly on admissible information. The court determined that Dr. Weaver-Osterholtz's opinion was not solely based on hearsay, as she reviewed Mrs. Linn's medical records for ten hours, considered deposition testimonies, and utilized her own medical training and experience. Plaintiffs assert that her different personal standard of care indicates reliance on other doctors' opinions; however, the record shows she considered multiple factors, including the difficulty of diagnosing Mrs. Linn's ureteral leak and her complex medical history. The applicable standard of care is that recognized by reasonably prudent health care professionals, not Dr. Weaver-Osterholtz's personal standard. She concluded that Dr. Fossum met this standard, and her opinion on the matter is deemed credible by the court.

Judge Kahn dissenting highlights a conflict with the Fourth District Court of Appeal's ruling in *Schwarz v. State*, where a medical examiner's opinion was bolstered by implying agreement from another doctor. In *Schwarz*, the court ruled that allowing such bolstering was improper, yet affirmed the conviction due to harmless error. Kahn identifies two main differences between *Schwarz* and the current case. First, the appellants are not claiming that Dr. Weaver-Osterholtz improperly bolstered her testimony; their main argument is that her opinion was based on hearsay. Kahn notes that Weaver-Osterholtz clarified she applied a different standard of care and did not share the opinions of consulted doctors, making the bolstering argument less relevant. Second, unlike in *Schwarz*, Weaver-Osterholtz did not assert that other experts agreed with her during direct examination; her mention of consulting other doctors was in response to a question about determining the standard of care. The dissent argues that the cross-examination did not make the cases comparable. Kahn concludes that the trial court did not err in admitting Weaver-Osterholtz's testimony, which was not solely based on hearsay, and that there is no basis to certify a conflict with *Schwarz*. The dissent seeks a reversal of the trial court’s judgment for a new trial based on the admission of inadmissible evidence related to the expert's testimony. The background involves allegations of medical negligence against Dr. Fossum for failing to diagnose a urine leak during surgery on Beth Linn.

Beth Linn experienced severe abdominal pain one week post-operation and was treated at Twin Cities Hospital in Niceville, Florida, by Dr. Fossum. The appellants claim Dr. Fossum negligently failed to identify a urine leak as the cause of her pain and subsequent infection. During her four-day stay, imaging tests indicated significant fluid above the bladder, and the possibility of a ureteral injury was raised. Dr. Fossum ordered a bilateral retrograde pyelogram, which he interpreted as negative, and did not pursue further testing despite inconsistencies with earlier results. The Linns sought additional evaluations but received none, prompting them to visit Emory University Hospital in Atlanta. There, a CT scan indicated a fluid collection consistent with a right ureter injury, leading to a subsequent retrograde pyelogram that confirmed the diagnosis and the insertion of a stent.

Dr. Weaver-Osterholtz provided expert testimony regarding the standard of urological care. She stated that the urine leak was evident from the medical records and criticized Dr. Fossum's decision to adopt a "watch and wait" approach, asserting she would have opted to insert a stent based on initial radiological findings. Although she articulated a personal standard of care, she ultimately testified that Dr. Fossum did not deviate from the standard applicable in this case. During her examination, she explained her evaluation process, which involved discussing the case with multiple urologists and staff from the University of Missouri to determine the standard of care. Despite objections regarding hearsay, she confirmed her opinion that Dr. Fossum met the standard of care in this situation.

Dr. Weaver-Osterholtz affirmed that Dr. Fossum's treatment was appropriate after her direct examination. During cross-examination, she acknowledged that her opinion on the standard of care was based solely on a brief "curb-side consult" with several unnamed doctors, where she presented the case and x-rays without referring to other medical records or making notes of their comments. Although she claimed to have used "the literature" and "the depositions" to form her opinion, she did not cite any specific sources beyond this informal presentation. Defense counsel recognized the issue by referencing her consult as the basis for determining the standard of care. 

The appellants argue that admitting Dr. Weaver-Osterholtz's testimony was a clear error since it relied entirely on these informal consultations. They cited section 90.704, Florida Statutes, which permits experts to rely on facts or data not admissible in evidence if they are typically relied upon by experts in the field. However, Dr. Fossum contends that her testimony was admissible under this statute, despite the inadmissibility of her colleagues' statements. The legal precedent from Sikes v. Seaboard Coast Line Railroad Co. illustrates that an expert's opinion cannot rest solely on inadmissible evidence. While the ruling allowed for some reliance on inadmissible data as a starting point, further analysis was required for a valid opinion.

In Gerber v. Iyengar, the Florida Third District Court ruled that a defense causation witness's testimony regarding out-of-court statements from a medical textbook author constituted inadmissible hearsay. The witness acknowledged the textbook's authority but claimed the author’s intent differed from what was written, which the court found problematic as it denied the plaintiff a chance for cross-examination. The court emphasized that while expert witnesses can form opinions based on inadmissible evidence, they cannot act as conduits for such evidence. This principle was supported by prior cases, including Maklakiewicz v. Berton, where an officer’s expert opinion was deemed inadmissible due to reliance on hearsay. The court noted that section 90.704 of the evidence code allows experts to use inadmissible facts to support their opinions but prohibits them from solely relying on hearsay or quoting other experts' findings, which would also be considered hearsay. The court further clarified that although an expert may reference various types of information in forming an opinion, they cannot improperly enhance their testimony with inadmissible evidence.

The Fourth District reviewed prior cases that prohibit experts from enhancing their testimony by referencing agreement from treatises or other experts who do not testify. The court emphasized that allowing such practices would enable one expert to serve as a conduit for the opinion of another expert, circumventing cross-examination. In the case at hand, Dr. Weaver-Osterholtz stated her standard of care would differ significantly from Dr. Fossum’s, proposing a more aggressive approach. However, her opinion was based solely on out-of-court statements from unnamed physicians rather than her own experience or the medical records. Although Dr. Weaver-Osterholtz has expertise and reviewed relevant materials, her ultimate opinion was not substantiated by identifiable evidence, as it relied exclusively on undisclosed opinions from colleagues. The majority's assertion that her consultations were only part of her opinion was deemed incorrect. The court concluded that section 90.704 should not support such testimony, which was based solely on non-evidentiary information. Thus, the testimony should have been excluded, and the majority's application of the statute was inconsistent with established precedents, particularly in conflict with the ruling in Schwarz. The author would reverse the decision and remand for a new trial.