IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
DOCTORS COMPANY, INSURER,
FOR ITSELF AND FOR ANNABELL
TORRES, M.D.,
Appellants,
v. Case No. 5D15-1963
NANCY PLUMMER, INDIVIDUALLY
AND AS PERSONAL REPRESENTATIVE
OF THE ESTATE OF WILLIAM PLUMMER,
AND ON BEHALF OF B.A.P. AND L.J.P.,
MINORS,
Appellee.
________________________________/
Opinion filed January 20, 2017
Appeal from the Circuit Court
for Volusia County,
Sandra C. Upchurch, Judge.
Thomas E. Dukes, III and Philip F. Moring,
of McEwan, Martinez, & Dukes, P.A.,
Orlando, and Mark Hicks and Dinah Stein,
of Hicks, Porter, Ebenfield & Stein, P.A.,
Miami, for Appellants.
Bryan S. Gowdy and Jessie L. Harrell, of
Creed & Gowdy, P.A., Jacksonville, and
Carlos Diez-Arguelles, Maria D. Tejedor,
and Jack T. Cook, of Diez-Arguelles &
Tejedor, P.A., Orlando, for Appellee.
EVANDER, J.
Appellants Annabell Torres M.D. (“Dr. Torres”) and her malpractice insurer,
Doctors Company, appeal a final judgment entered pursuant to a jury verdict in this
wrongful death medical malpractice case. Judgment was entered in favor of Appellee,
Nancy Plummer, individually, and as personal representative of the estate of William
Plummer (“Decedent”). Because Appellee was permitted to present prejudicial,
undisclosed expert testimony and because of certain erroneous evidentiary rulings, we
are compelled to reverse and remand for a new trial.
On December 4, 2009, Decedent visited the Valentine Family Clinic in DeLand,
Florida, complaining of ear pain that had persisted for two weeks. Decedent was seen
by Dr. Lee Brown, who diagnosed a bilateral otitis media (a middle ear infection) and
“sinusitis chronic with obstruction.” Dr. Brown wrote two prescriptions for Z-Pak
antibiotics, and told Decedent to follow-up in two weeks. On December 18, 2009,
Decedent returned to the Valentine Family Clinic and was seen by Dr. Torres, a board
certified family physician. According to Dr. Torres’ notes, Decedent complained of chronic
ear problems that persisted for one month. During this visit, Decedent’s chart failed to
reflect that any ear exam took place. Although not reflected in Decedent’s chart, Dr.
Torres later testified that it “usually would be within my standard to check into the ears.”
Dr. Torres recommended that Decedent take a Medrol Dosepak, a steroid, to aid
Decedent’s mild sinusitis. Additionally, Dr. Torres provided Decedent with samples of
Levaquin, an antibiotic, given that the Christmas holiday was approaching and as a
precaution in case Decedent’s sinusitis worsened over that period of time. At the bottom
of the chart, Dr. Torres’ notes reflected instructions that Decedent follow-up in one month.
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Decedent returned to the Valentine Family Clinic on February 25, 2010, when he
complained of “intense right ear pain.” Dr. Torres examined Decedent’s ear and found a
bulging tympanic membrane (ear drum). Dr. Torres diagnosed Decedent with right-ear
otitis media once again. Upon her exam, Dr. Torres noted no redness of the ear, no pus
in Decedent’s ear canal, nor discharge from the ear. Dr. Torres prescribed Decedent
another Z-pak and pain medication. Dr. Torres did not refer Decedent to an ear, nose,
and throat doctor for further consultation.
The next morning, on February 26, 2010, Decedent visited Atlantic Ear Nose &
Throat, where he was seen by a physician assistant. Decedent complained of a four-
month history of a clogged right ear with muffled hearing. The physician assistant noted
Decedent had pus in the right ear, fluid behind his eardrum, as well as redness of the
eardrum, and diagnosed Decedent with a middle and outer ear infection. The physician
assistant advised Decedent to finish the current Z-pak and Medrol Dospak, and
prescribed Ciprodex with an instruction to follow-up in ten days. The physician assistant
did not note any signs of sinusitis.
Early the next morning, on February 27, 2010, Decedent collapsed at his home
and was taken to Florida Hospital in DeLand. A CT scan of Decedent’s brain was ordered,
and revealed “effacement of the cerebral hemispheric sulci as well as the basilar cisterns,
concerning for cerebral edema.” The CT final report also noted: “Bone detail shows
opacification of the right mastoid sinus and right middle ear” and bilateral ethmoid sinus
disease (sinusitis). Following Decedent’s admission to the hospital, Dr. Daniel Rothbaum,
a physician with Atlantic Ear Nose & Throat, surgically placed a tube in Decedent’s ear to
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relieve fluid buildup in the ear. Dr. Rothbaum later recalled his belief that Decedent’s ear
infection had progressed to an infection of the brain, stating:
This was a patient who, from what I could gather, had had
problems with an ear infection and had progressed to what
appeared to be an infection of the brain. And so as part of that
treatment for that, I thought it was important to try to maximally
treat the ear infection, even if I couldn’t treat what was going
on in the brain. And so to do that, I decided to try to drain any
infection from behind the eardrum. The type of infection we’re
talking here is one that’s in what's called the middle ear, the
area between the eardrum and the inner ear.
While completing the surgery, Dr. Rothbaum observed that Decedent’s eardrum was “a
little bit red and that there was fluid behind the eardrum.” Dr. Rothbaum did not recall
seeing pus behind the eardrum or an abscess. During the surgery, a culture of the fluid
found in Decedent’s ear was taken and revealed strep pneumonia, a bacteria likely
resistant to Z-Pak antibiotics. Following the procedure, Dr. Rothbaum diagnosed
Decedent with Eustachian tube dysfunction, acute otitis media (middle ear infection) with
meningitis/sepsis, and cerebral edema.
Subsequent to his hospital admission, Decedent stopped breathing and was
placed on a ventilator. He ultimately passed away on March 2, 2010. The cause of death
was meningitis.
In her initial complaint filed November 8, 2012, Appellee alleged that Dr. Torres
breached her duty of care to Decedent by:
a. Negligently obtaining history from [Decedent];
b. Negligently failing to recognize the signs and symptoms of
serious head and neck disease including acute and chronic,
potentially fulminant otitis media and sinusitis with extension
to the meninges and brain, bacterial meningitis and/or other
brain infection;
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c. Negligently failing to include the diagnosis of bacterial
meningitis in the differential diagnosis;
d. Negligently failing to STAT refer [Decedent] to the hospital
Emergency Department for complete laboratory evaluation
including pan-cultures, CBC, sedimentation rate, imaging
studies of the head and neck;
e. Negligently failing to obtain a STAT ENT consult and
complete neurological evaluation to rule out serious life
threatening disease;
f. Negligently ordering a Z-pak after [Decedent] presented
with months of an ear infection and history of using a Z-pak in
the past which did not resolve his symptomology.
Notably, the initial complaint did not allege that Dr. Torres was negligent in giving
Levaquin samples to Decedent.
Appellee’s primary standard of care experts were Dr. Finley Brown, a family
medicine expert, and Dr. Jerrold Dreyer, an infectious disease expert. Their deposition
testimony supported the proposition that Dr. Torres breached her duty of care at the
December 18, 2009 visit by: (a) misdiagnosing Decedent’s condition; (b) failing to take a
complete history from Decedent; (c) failing to perform a proper physical exam of
Decedent; (d) failing to culture Decedent’s ears to determine the type of germ he had; (e)
failing to treat his ear infection; (f) failing to perform bloodwork; (g) failing to order imaging
studies; and (h) failing to send Decedent to an ENT or the emergency room. Significantly,
neither retained expert testified that Dr. Torres had breached her duty of care by providing
Levaquin samples to Decedent. Indeed, when asked about Dr. Torres’ decision to
provide Decedent with Levaquin samples during the December 18, 2009, visit, Dr. Dreyer
testified in his deposition that he did not believe her action was inappropriate.
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often, for how long and how many milligrams. And give the
patient the instructions and you document that in the record.
Because you do that so you know whether you gave
the right amount, the right dose and the right amount that’s
clinically indicated that the manufacturer tells you, this is what
you need to give so that you can kill the bug.
If you give too little, you’re not going to kill it. If you give
too much, you may make the patient resistant. She doesn’t
document the dose, the administration, or how much.
Dr. Torres timely objected and argued that there had been no pretrial expert testimony
regarding Levaquin and testimony regarding same would constitute an “unfair surprise”
and “a new opinion.” Dr. Torres’ counsel further moved for a mistrial. After the trial court
overruled Dr. Torres’ objection and denied her motion for mistrial, Appellee’s counsel
went on to advise the jury that Dr. Torres failed to follow the manufacturer’s instructions
when she gave Decedent the Levaquin.
So the package insert for Levaquin calls that you got
the culture before you give the drug. And the reason for that
is because it’s a strong drug. It’s got a lot of risk associated
with it.
And it also says that you need to culture because you
need to see if it’s the right drug for streptococcus. Because
there are many different types of streptococcus and they don’t
know if it’s fine on Levaquin.
The manufacturer says you first culture, and then it will
take a day or two to get the results. And when you get the
results back, you adjust accordingly.
So the manufacturer – culture first, don’t give the
antibiotic unless you culture first. Because if you give the
antibiotic and you culture it next, that can give you a false
negative.
So you culture first, give – you can give the patient
antibiotics for a day or two and you get the cultures back in a
day or two and susceptibility testing, you look at it, you say, is
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it the right antibiotic? Great. Keep them on it. If it’s not, the
manufacturer says you’ve got to adjust.
The defendant in this case didn’t follow the
manufacturer’s instruction when she gave the Levaquin, and
because she gave the Levaquin without doing that, it was the
wrong drug. And because it was the wrong drug, it didn’t do
anything for the ear infection.
Consistent with counsel’s opening statement, and over Dr. Torres’ continued objection,
Appellee’s two standard of care experts testified that Dr. Torres breached her duty by
providing Decedent with Levaquin.
Dr. Finley Brown explained that Levaquin became a generic drug in 2005, and that
the FDA/manufacturer’s instructions on Levaquin do not indicate that it was intended for
the treatment of otitis media or a middle ear infection. He further opined that a family
practice physician would have the obligation to refer to, and know about, a prescription
drug’s package insert prior to administering that medication. Dr. Brown stated that
Levaquin’s package insert mentions obtaining a culture prior to prescribing the drug in
order to determine whether an infection is bacterial.
According to the insert, culture and sensitivity testing were needed prior to
prescribing Levaquin as a way to “reduce the development of drug-resistant bacteria and
maintain the effectiveness of Levaquin and other antibacterial drugs.” Dr. Brown opined
that the package insert’s language set the standard for the use of Levaquin and that no
cultures or sensitivities were completed on the December 18, 2009, visit. When asked if
there was a deviation from the standard of care and a deviation from accepted practice
when Dr. Torres provided Decedent with Levaquin samples without taking a culture and
susceptibility test, Dr. Brown answered in the affirmative.
9
often, for how long and how many milligrams. And give the
patient the instructions and you document that in the record.
Because you do that so you know whether you gave
the right amount, the right dose and the right amount that’s
clinically indicated that the manufacturer tells you, this is what
you need to give so that you can kill the bug.
If you give too little, you’re not going to kill it. If you give
too much, you may make the patient resistant. She doesn’t
document the dose, the administration, or how much.
Dr. Torres timely objected and argued that there had been no pretrial expert testimony
regarding Levaquin and testimony regarding same would constitute an “unfair surprise”
and “a new opinion.” Dr. Torres’ counsel further moved for a mistrial. After the trial court
overruled Dr. Torres’ objection and denied her motion for mistrial, Appellee’s counsel
went on to advise the jury that Dr. Torres failed to follow the manufacturer’s instructions
when she gave Decedent the Levaquin.
So the package insert for Levaquin calls that you got
the culture before you give the drug. And the reason for that
is because it’s a strong drug. It’s got a lot of risk associated
with it.
And it also says that you need to culture because you
need to see if it’s the right drug for streptococcus. Because
there are many different types of streptococcus and they don’t
know if it’s fine on Levaquin.
The manufacturer says you first culture, and then it will
take a day or two to get the results. And when you get the
results back, you adjust accordingly.
So the manufacturer – culture first, don’t give the
antibiotic unless you culture first. Because if you give the
antibiotic and you culture it next, that can give you a false
negative.
So you culture first, give – you can give the patient
antibiotics for a day or two and you get the cultures back in a
day or two and susceptibility testing, you look at it, you say, is
8
it the right antibiotic? Great. Keep them on it. If it’s not, the
manufacturer says you’ve got to adjust.
The defendant in this case didn’t follow the
manufacturer’s instruction when she gave the Levaquin, and
because she gave the Levaquin without doing that, it was the
wrong drug. And because it was the wrong drug, it didn’t do
anything for the ear infection.
Consistent with counsel’s opening statement, and over Dr. Torres’ continued objection,
Appellee’s two standard of care experts testified that Dr. Torres breached her duty by
providing Decedent with Levaquin.
Dr. Finley Brown explained that Levaquin became a generic drug in 2005, and that
the FDA/manufacturer’s instructions on Levaquin do not indicate that it was intended for
the treatment of otitis media or a middle ear infection. He further opined that a family
practice physician would have the obligation to refer to, and know about, a prescription
drug’s package insert prior to administering that medication. Dr. Brown stated that
Levaquin’s package insert mentions obtaining a culture prior to prescribing the drug in
order to determine whether an infection is bacterial.
According to the insert, culture and sensitivity testing were needed prior to
prescribing Levaquin as a way to “reduce the development of drug-resistant bacteria and
maintain the effectiveness of Levaquin and other antibacterial drugs.” Dr. Brown opined
that the package insert’s language set the standard for the use of Levaquin and that no
cultures or sensitivities were completed on the December 18, 2009, visit. When asked if
there was a deviation from the standard of care and a deviation from accepted practice
when Dr. Torres provided Decedent with Levaquin samples without taking a culture and
susceptibility test, Dr. Brown answered in the affirmative.
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Dr. Dreyer similarly testified that the standard of care requires a physician to be
familiar with the package insert for any medication he or she prescribes. Pursuant to the
insert’s language, Levaquin is not an FDA-approved drug for the treatment of otitis media
or ear infections. According to Dr. Dreyer, the insert prescribed the proper dosage of
Levaquin needed to treat sinusitis; however, Dr. Torres did not document the dosage she
provided to Decedent or how long he was supposed to take the prescription. Such
failures, according to Dr. Dreyer, constituted a breach of the standard of care. Dr. Dryer
likewise confirmed that the Levaquin package insert recommended that a culture of the
infection be performed prior to a physician prescribing the drug.
In closing argument, Appellee’s counsel again emphasized Dr. Torres’ use of
Levaquin and the Levaquin package insert:
Why do we know it’s important to take a culture?
Because we saw from the manufacturer’s package insert on
Levaquin it’s not FDA approved for ear infections, but the
manufacturer says this is a strong antibiotic. And if you’re
going to use this antibiotic, physicians need to culture.
Why do they need to culture? Because culturing will
tell you what the bug is. And when you know what the bug is,
you can give the right antibiotic because you can’t be giving
antibiotics willy-nilly because patients develop a resistance to
it.
On appeal, Dr. Torres argues that she was unduly prejudiced by Appellee’s
argument and evidence regarding Levaquin. We agree and conclude that the trial court
erred in permitting Appellee to argue and present evidence that Dr. Torres breached her
duty of care by providing Levaquin samples to Decedent and further erred by allowing the
Levaquin package insert to be admitted into evidence.
10
In Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981), the Florida Supreme
Court established a test that trial courts should employ when determining whether certain
undisclosed testimony should be excluded as prejudicial to the opposing party:
[A] trial court can properly exclude the testimony of a witness
whose name has not been disclosed in accordance with a
pretrial order. The discretion to do so must not be exercised
blindly, however, and should be guided largely by a
determination as to whether the use of the undisclosed
witness will prejudice the objecting party. Prejudice in this
sense refers to the surprise in fact of the objecting party, and
it is not dependent on the adverse nature of the testimony.
Other factors which may enter into the trial court’s exercise of
discretion are: (i) the objecting party’s ability to cure the
prejudice, or similarly, his independent knowledge of the
existence of the witness; (ii) the calling party’s possible
intentional, or bad faith, noncompliance with the pretrial order;
and (iii) the possible disruption of the orderly and efficient trial
of the case . . . . If after considering these factors, and any
others that are relevant, the trial court concludes that use of
the undisclosed witness will not substantially endanger the
fairness of the proceeding, the pretrial order mandating
disclosure should be modified and the witness should be
allowed to testify.
Id. (footnotes omitted). The Binger analysis has subsequently been applied to cases
where an expert changes his or her opinion or gives a new opinion, which results in
surprise and prejudice to the opposing party. See, e.g., Perryman, M.D. v. Crawford, 968
So. 2d 83, 85-86 (Fla. 4th DCA 2007) (“We find it no stretch to conclude that the failure
to disclose an expert witness’s opinion in compliance with a pretrial order and a proper
discovery request should be analyzed under the principles announced in Binger and is
‘tantamount to permitting an undisclosed adverse witness to testify.’”).
Here, the record reflects that Dr. Torres was prejudiced by the surprise testimony
and evidence presented at trial regarding Levaquin. Appellee first disclosed its intent to
present evidence that Dr. Torres’ provision of Levaquin samples to Decedent constituted
11
a breach of a duty of care during counsel’s opening statement at trial. As a result, Dr.
Torres was denied the opportunity to conduct discovery on whether Decedent actually
used the Levaquin and, if so, the amount used, and whether such use would have
adversely affected Decedent. Additionally, Dr. Torres was denied the opportunity to
discover whether the package insert introduced at trial was authentic. Indeed, Dr. Brown
stated that the Levaquin given by Dr. Torres was manufactured by Johnson and Johnson,
yet the package insert shown to the jury was from manufacturer Janssen Ortho, LLC.
Furthermore, although Dr. Torres testified that she gave the Levaquin to treat sinusitis
rather than an ear infection, her experts were deprived of the opportunity to fully respond
to the claim that Levaquin samples should not have been provided to Decedent. 1
The trial court’s error was compounded by permitting the insert to be admitted into
evidence (even assuming its authenticity). Although section 90.706, Florida Statutes
(2014), permits statements of facts or opinion on a subject of specialized knowledge
contained in a learned treatise, pamphlet, or other writing to be used in cross-examination
of an expert witness, it does not permit those statements to be used as substantive
evidence. Nationwide Mut. Fire Ins. Co. v. Darragh, 95 So. 3d 897, 901 (Fla. 5th DCA
2012). The rationale for this rule is, otherwise, an opposing party would be deprived of
the opportunity to cross-examine or impeach the source of the statement of fact or
opinion. Id.2
1It should be noted that a juror specifically posed a question for Dr. Dreyer on the
use of Levaquin: “If Levaquin is not for use in the treatment of ear infections, why does
the doctor think that Dr. Torres, the ENT and the hospital gave or attempted to give
[Decedent] Levaquin?”
2Of course, the fact that the insert itself might not be admissible into evidence
would not preclude an expert from discussing same if facts or data in the insert were “of
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Other courts have concluded that although a prescription drug package insert may
have some significance in identifying a doctor’s standard of care in the administration and
use of a prescription drug, it cannot be used as “stand-alone proof” of the standard of
care. See In re Richardson-Merrell, Inc. Bendectin Prods. Liab. Litig., 624 F. Supp. 1212,
1232 (S.D. Ohio 1985) (holding that drug manufacturer’s warnings are out-of-court
statements offered to prove the truth of the matter asserted, therefore inadmissible
hearsay); Spensieri v. Lasky, 723 N.E.2d 544, 548 (N.Y. 1999) (“The [Physicians’ Desk
Reference] may have some significance in identifying a doctor’s standard of care in the
administration and use of prescription drugs, but is not the sole determinant. . . . The
testimony of an expert is necessary to interpret whether the drug in question presented
an unacceptable risk of the patient in either its administration or the monitoring of its
use.”); Saccone v. Gross, 84 A.D.3d 1208, 1209 (N.Y. App. Div. 2011) (holding that
plaintiff was properly precluded from offering information from package insert as
republished in Physicians’ Desk Reference into evidence because the proffered evidence
constituted inadmissible hearsay).
We also hold that the trial court reversibly erred in excluding the deposition
testimony of Dr. Kelley, the emergency room physician who treated Decedent when he
arrived at the hospital on February 27, 2010. Dr. Kelley made certain observations of the
patient that arguably supported Dr. Torres’ theory of defense. In excluding Dr. Kelley’s
deposition, the trial court initially observed that the witness had not been subpoenaed.
When Dr. Torres’ counsel appropriately argued that Florida Rule of Civil Procedure
a type reasonably relied upon by experts in the subject to support the opinion expressed.”
See § 90.704, Fla. Stat. (2014).
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1.330(a)(3)(F) expressly authorizes the use of a deposition by any party for any purpose
if the court finds that the witness is an expert or a skilled witness, the trial court
inexplicably declined to find Dr. Kelley was a skilled witness.
The trial court erred in declining to find Dr. Kelley was a skilled witness, particularly
where it was uncontroverted that Dr. Kelley was a licensed and experienced emergency
room physician, who was board certified in emergency medicine. As a result, it was error
for the trial court to preclude Dr. Torres’ use of Dr. Kelley’s deposition. See, e.g.,
Castaneda v. Redlands Christian Migrant Ass’n, 884 So. 2d 1087, 1093 (Fla. 4th DCA
2004) (holding that it was error of law for trial court to refuse to permit party to use
depositions of opposing party’s employees where use was expressly authorized by
Florida Rule of Civil Procedure 1.330). We reject Appellee’s suggestion that the exclusion
of Dr. Kelley’s deposition was harmless. Although Dr. Kelley’s records were admitted into
evidence, the jury was denied the opportunity to hear her qualifications and any
statements made in her deposition that amplified and/or clarified the contents of her
records.
We reject, without discussion, Appellants’ other issues raised on appeal.
REVERSED and REMANDED for new trial.
PALMER and BERGER, JJ., concur.
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