Alexis Cantore, etc. v. West Boca Medical Center, Inc., etc.

Supreme Court of Florida
____________

No. SC15-1926
____________

ALEXIS CANTORE, etc., et al.,
Petitioners,

vs.

WEST BOCA MEDICAL CENTER, INC., etc., et al.,
Respondents.

[April 26, 2018]
CORRECTED OPINION

PER CURIAM.

Because the treating physician’s deposition testimony regarding how he

would have treated Alexis Cantore had she arrived at Miami Children’s Hospital

earlier was inadmissible, we quash the Fourth District Court of Appeal’s decision

in Cantore v. West Boca Medical Center, Inc., 174 So. 3d 1114 (Fla. 4th DCA

2015).1

BACKGROUND

1. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.
 In July 2008, Alexis Cantore suffered permanent brain damage while being

treated for hydrocephalus at West Boca Medical Center (WBMC) and Miami

Children’s Hospital (MCH). The Fourth District described the background of this

case as follows:

In 2006, two years before the illness that gave rise to this case,
when Alexis Cantore was twelve years old, she was diagnosed with
hydrocephalus, a condition resulting from a build-up of excess
cerebral spinal fluid within the cranium. Her condition resulted from
a benign tumor which grew and blocked the outflow of the fluid
which normally circulates around the brain. In 2006, she underwent a
procedure, known as an Endoscopic Third Ventriculostomy (“ETV”),
to remove the blockage. The procedure, which was performed at
MCH, relieved the problem without causing Alexis any permanent
injury.
However, scar tissue began to develop; a December 2007 CT
scan at WBMC showed fluid starting to accumulate around her brain
again. MRIs in March and June 2008 confirmed that a blockage was
occurring again. A doctor at MCH scheduled Alexis for an ETV on
July 28, 2008.
However, on July 3, 2008, at 2:30 p.m., Alexis began
experiencing painful headaches and vomiting. Alexis’s parents called
MCH; a nurse told them to bring Alexis to the nearest hospital for a
CT scan if they could not make it to MCH. Alexis was taken by
ambulance to WBMC, arriving at 4:29 p.m. She was triaged and, on a
three-tiered scale of categories (emergent, urgent and non-urgent),
was listed in the middle category as “urgent.” “Urgent” patients are
those who are sick and require care, but are able to progress. In
contrast, “emergent” patients may deteriorate quickly and need
interventions, while “non-urgent” patients may have something like a
laceration or a bite, which requires care but is not a medical
emergency. The triage nurse on duty, in categorizing Alexis as
“urgent,” noted that she was awake and alert, moving all extremities,
had a normal neurological exam, and a normal pupillary response,
which was not indicative of an impending brain herniation.
Dr. Freyre-Cubano (“Dr. Freyre”), a pediatrician who was
working in the WBMC emergency room, ordered a CT scan STAT at

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4:47 p.m., before examining Alexis. Dr. Freyre first evaluated Alexis
and noted that she had a normal pupillary exam. A nurse also noted
no deficits to Alexis’s eyes. Dr. Freyre performed another eye exam
which showed that Alexis’s pupils were equal and reactive to light. A
radiologist read the new CT scan, compared it with the previous one
from December 2007, and confirmed in a report that Alexis’s
condition was worsening, and that the ventricles were larger than they
had been on the previous CT scan. The findings were “consistent
with worsening hydrocephalus.”
By 5:40 p.m., Dr. Freyre had reviewed the report on the CT
scan and called Dr. Sandberg, the on-call pediatric neurosurgeon at
MCH, regarding transferring Alexis to MCH. At that time, Dr. Freyre
told Dr. Sandberg that Alexis was “stable.” This became an important
issue at trial and . . . on appeal.
Dr. Freyre spoke with MCH’s emergency department
physicians regarding transferring Alexis via MCH’s helicopter
transportation service, known as “LifeFlight.” About twenty minutes
later, the MCH dispatcher for LifeFlight received the request for
transport.
A WBMC nurse called the operations administrator at MCH,
and apparently learned that the pilots on shift were approaching the
maximum twelve hours of flight time and Alexis’s transport would be
completed by the on-coming pilots. LifeFlight’s estimated arrival
time was 7:00 p.m.
At 6:22 p.m., Alexis had an episode of vomiting, during which
her heart rate briefly dropped to 55. A WBMC nurse then contacted a
MCH Pediatric Intensive Care Unit (“PICU”) nurse to update them.
Dr. Freyre noted that she had called the MCH emergency department
physician regarding Alexis’s transfer and gave the necessary
information.
Alexis was transferred to LifeFlight care at 7:25 p.m. She was
examined by a LifeFlight nurse. The neurological assessment at that
time was that Alexis was asleep, non-verbal and oriented as to person.
When she was awakened, she was able to respond to her mother by
nodding her head, and her pupils were equal, round and reactive to
light. She had a Glasgow Coma Scale score of 13, with a perfect
score being 15. She had a decrease in her speech. The helicopter
lifted off at 8:09 p.m.
During the flight, Alexis suffered an acute decompensation. By
the time she landed at MCH at 8:25 p.m., she had suffered a brain

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 herniation. Accordingly, instead of taking Alexis to PICU, hospital
personnel took her straight to the ER. Alexis arrived in very critical
condition. Dr. Sandberg did an emergent ventriculostomy, in which
he drilled a hole into her skull to insert a catheter, thereby relieving
pressure on the brain. This procedure saved her life. However,
Alexis suffered permanent brain damage; she has significant mental
impairment and must be fed through a tube. She will never be able to
work or live independently.

Id. at 1115-17.

In 2010, Alexis and her parents, Felix and Barbara Cantore, sued WBMC

and MCH, alleging that they had not provided proper medical care for Alexis on

July 3, 2008. The Cantores presented testimony from several expert witnesses

regarding the timing of Alexis’ transfer from WBMC to MCH and the care she

received from the LifeFlight crew. One of the witnesses, Dr. William Loudon, a

pediatric neurosurgeon, testified that, based on his understanding of Alexis’

condition before she herniated, if she had come under his care prior to the

herniation, he would have performed an emergency ventriculostomy. In Dr.

Loudon’s opinion, if Alexis had received earlier relief from the build-up of

cerebrospinal fluid in her brain, the herniation could have been prevented.

Over the Cantores’ objection, counsel for WBMC was permitted to publish

to the jury the deposition of Dr. Sandberg, the pediatric neurosurgeon at MCH who

operated on Alexis, in which Dr. Sandberg answered hypothetical questions as to

how he would have treated Alexis had she arrived at MCH an hour or two earlier.

The trial court also permitted Dr. Steven White, WBMC’s expert on pediatric

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emergency medicine, to testify that Dr. Sandberg’s statement as to what he would

have done had Alexis arrived at MCH earlier was consistent with what other

neurosurgeons would have done.

Ultimately, the jury returned a verdict in favor of WBMC and MCH. The

Fourth District affirmed, concluding that this Court’s decision in Saunders v.

Dickens, 151 So. 3d 434 (Fla. 2014), did not prevent the admission of Dr.

Sandberg’s deposition testimony. Cantore, 174 So. 3d at 1117-21.

ANALYSIS

The Cantores argue that the trial court abused its discretion in admitting Dr.

Sandberg’s deposition testimony about what he would have done had Alexis

arrived at MCH earlier because such testimony is prohibited by this Court’s

decision in Saunders. We agree and quash the Fourth District’s decision.2

2. We also agree with the Cantores that the trial court erred in entering a
directed verdict in favor of WBMC and MCH on the application of section 768.13,
Florida Statutes (2008), the Good Samaritan Act, which grants immunity from civil
damages to any healthcare provider that provides “emergency services,” unless the
damages are the result of “reckless disregard.” The threshold question in
determining the applicability of the Good Samaritan Act is whether the healthcare
provider was providing “emergency services” to the patient. But here there was
conflicting evidence regarding whether Alexis was “stabilized and [was] capable
of receiving medical treatment as a nonemergency patient” at the times relevant to
the Cantores’ allegations of medical malpractice. § 768.13(2)(b)2.a., Fla. Stat. For
example, there was testimony that immediately upon her arrival at WMBC “her
level of consciousness began to wax and wane”; however, another witness testified
that she was stable “[u]p until the very end of the transport.” Therefore, due to the
conflicting evidence about Alexis’ condition, the question of whether the Good

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 A trial court’s admission of evidence is reviewed for an abuse of discretion.

See Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1265 (Fla. 2014).

The elements of a medical malpractice claim are: “(1) a duty by the

physician, (2) a breach of that duty, and (3) causation.” Saunders, 151 So. 3d at

441 (citing Gooding v. Univ. Hosp. Bldg., Inc., 445 So. 2d 1015, 1018 (Fla. 1984)).

To establish that a physician breached the duty of care owed to the patient, the

plaintiff must prove that “the care provided by the physician was not that of a

reasonably prudent physician.” Id. As to the element of causation, “Florida courts

follow the more likely than not standard of causation and require proof that the

negligence probably caused the plaintiff’s injury.” Gooding, 445 So. 2d at 1018.

In Saunders, this Court addressed a plaintiff’s burden of proof in medical

malpractice cases. The patient in Saunders went to a neurologist complaining of

back and leg pain, unsteadiness, cramps in his hands and feet, numbness in his

hands, and tingling in his feet. Saunders, 151 So. 3d at 436. The neurologist

determined that the issues with the patient’s hands were caused by peripheral

neuropathy due to diabetes, but the neurologist did not perform a test to confirm

the diagnosis. Id. The neurologist recommended that the patient be admitted to

the hospital, and he ordered an MRI of the patient’s brain and lumbar spine. Id.

Samaritan Act applied should have been left to the jury. See Univ. of Fla. Bd. of
Trs. v. Stone ex rel. Stone, 92 So. 3d 264, 271 (Fla. 1st DCA 2012).

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“[T]he MRI of the lumbar spine demonstrated severe stenosis (narrowing) of the

spinal canal.” Id. Based on these results, the neurologist referred the patient to a

neurosurgeon for a consultation. Id. Unaware of any issues with the patient’s

upper extremities, the neurosurgeon performed a lumbar decompression procedure

on the patient. Id. The patient’s condition did not improve, so the neurosurgeon

ordered additional MRIs, including a cervical MRI, which showed compression in

both the lower back and neck. Id. The neurosurgeon recommended that cervical

decompression surgery be performed, but the neurosurgeon did not schedule the

surgery as planned. Id. A second neurosurgeon met with the patient and

concluded that he “should undergo a second lumbar surgery and, at a later date, a

cervical spine surgery.” Id. at 437. “The [second] neurosurgeon performed the

lumbar surgery, but the cervical spine surgery was never performed.” Id. The

patient’s condition eventually degenerated into quadriplegia. Id.

In his medical malpractice claim against the neurologist, the patient in

Saunders alleged that the neurologist had failed to timely diagnose his cervical

compression. Id. The patient also filed a claim against the first neurosurgeon, but

the parties settled before trial. Id. At trial, the patient presented expert testimony

that the neurologist’s failure to consider cervical cord compression as the cause of

the patient’s upper body symptoms was a breach of the standard of care. Id. The

patient also presented expert testimony that, had a cervical decompression surgery

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been performed shortly after the time the patient first reported his symptoms, the

patient “more likely than not would not have progressed to quadriplegia.” Id. In

rebuttal, the neurologist introduced depositions of the first neurosurgeon, which

were taken before he settled with the patient. Id. at 438. In the depositions, the

first neurosurgeon stated that, even if he had possessed the results of a cervical

MRI when he initially met with the patient, “he would not have operated on the

neck because [the patient] had not yet experienced problems with his upper

extremities.” Id. During closing argument, counsel for the neurologist “asserted

that [the patient] had not established causation in light of [the first neurosurgeon’s]

testimony that he would not have changed the course of treatment even if [the

neurologist] had ordered a cervical MRI.” Id. at 439. The jury then returned a

verdict in favor of the neurologist. Id.

However, this Court in Saunders stated, “[W]e hold that testimony that a

subsequent treating physician would not have treated the patient plaintiff

differently had the defendant physician acted within the applicable standard of care

is irrelevant and inadmissible and will not insulate a defendant physician from

liability for his or her own negligence.” Id. at 443.3 We explained:

3. The dissent contends that we cannot base conflict jurisdiction on this
statement because it is allegedly dicta rather than an issue of law this Court
actually decided in Saunders. However, within the four corners of the Saunders

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 Because the central concern in medical malpractice actions is the
reasonably prudent physician standard, the issue of whether a treating
physician acted in a reasonably prudent manner must be determined
for each individual physician who is a defendant in a medical
malpractice action. A subsequent treating physician simply may not
be present at the time a defendant physician makes an allegedly
negligent decision or engages in a potentially negligent act. Further, it
is not only the final physician, but rather each treating physician who
must act in a reasonably prudent manner. . . . To [allow testimony
from a subsequent treating physician like that of the first
neurosurgeon], would alter the long-established reasonably prudent
physician standard where the specific conduct of an individual doctor
in a specific circumstance is evaluated. It would place a burden on the
plaintiff to somehow prove causation by demonstrating that a
subsequent treating physician would not have disregarded the correct
diagnosis or testing, contrary to his or her testimony and irrespective
of the standard of care for the defendant physician. To require the
plaintiff to establish a negative inappropriately adds a burden of proof
that simply is not required under the negligence law of this State.
Id. at 442. Accordingly, this Court held that the closing argument by counsel for

the neurologist regarding the element of causation was “a misstatement of the

law,” and “the trial court erred when it permitted . . . counsel to mislead the jury

during closing statements.” Id. We also determined that the error was harmful

because counsel for the neurologist “repeatedly relied on [the first neurosurgeon’s]

testimony in his improper burden-shifting statements” and, because the plaintiff

was unable to explain that the first neurosurgeon’s deposition was taken before he

decision, the majority of this Court expressly indicated that it was deciding this
question of law, which is binding precedent.

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settled out of the case, “the jury was unaware that [the first neurosurgeon] was

motivated by a desire to deny wrongdoing and avoid liability.” Id. at 442-43.

In this case, Dr. Sandberg’s deposition testimony in response to the

hypotheticals from all the parties can be summarized as follows: Regardless of

whether Alexis had arrived at MCH an hour or two earlier, at some point he would

have performed an emergency ventriculostomy to save her life, and she still would

have suffered permanent brain damage. Dr. Sandberg explained that this would

have been the result regardless of the condition Alexis was in when she arrived. If

Alexis had arrived earlier and had been in stable condition, Dr. Sandberg would

have scheduled a surgery for later in the day, but Alexis likely would have

deteriorated prior to the scheduled surgery, requiring the same type of emergency

intervention she actually received. And if Alexis had arrived earlier and was in a

deteriorated state (as the Cantores posited would have been the case), Dr. Sandberg

would have proceeded with the emergency procedure at that time, just as he

actually did several hours later.

The substance of Dr. Sandberg’s testimony about how he would have treated

Alexis under circumstances other than those that actually occurred is no different

from the testimony from the subsequent treating physician in Saunders. In the

parties’ hypotheticals, Dr. Sandberg was not asked to explain the standard of

professional care for transferring patients with hydrocephalus who exhibit

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symptoms like the ones Alexis was exhibiting. Nor was he asked his opinion about

whether any of the other healthcare providers involved in Alexis’ care on July 3,

2008, failed to meet that standard. In the context of the entire trial record, it is

clear that the purpose of introducing the challenged portions of Dr. Sandberg’s

deposition testimony was to break the chain of causation between the alleged

negligent conduct of WBMC or MCH, or both, and Alexis’ injuries—i.e., to

establish that Alexis still would have suffered permanent brain damage even if the

hospitals and their staffs had effectuated a faster transfer from WBMC to MCH.4

Therefore, Dr. Sandberg’s testimony on that point was “irrelevant and

inadmissible,” Saunders, 151 So. 3d at 443, and the trial court abused its discretion

in allowing it to be read to the jury.

Contrary to the dissent’s attempt to factually distinguish this case from

Saunders, nothing in the four corners of Saunders provides that the admissibility of

a subsequent treating physician’s testimony about the causation element is affected

by the subsequent treating physician also serving as an advisor to an initial treating

physician or being referred to as a neutral and “hybrid” expert witness. Instead, in

4. The Fourth District stated that Dr. Sandberg’s responses regarding the
timing of Alexis’ transfer “had bearing on his own actions as well,” and in them
“he was explaining his medical decision-making process and how different
decisions made by him would have impacted Alexis’s neurological status and
condition.” Cantore, 174 So. 3d at 1119. However, the Cantores never alleged
that Dr. Sandberg or any other provider acted negligently after Alexis arrived at
MCH.

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Saunders, this Court’s focus was on the substance of the subsequent treating

physician’s testimony and its effect on the plaintiff’s case. Similarly, here, the

pertinent hypotheticals at issue concerned Dr. Sandberg’s status as the subsequent

treating physician and how his own subsequent treatment might have changed if

any previous treating healthcare providers had acted differently (i.e., arranged a

faster transfer).

Additionally, the error here was not harmless. See § 59.041, Fla. Stat.

(providing that the harmless error test applies to the “improper admission or

rejection of evidence”); Saunders, 151 So. 3d at 442 (applying the harmless error

test under these circumstances). “To test for harmless error [in civil appeals], the

beneficiary of the error has the burden to prove that the error complained of did not

contribute to the verdict. Alternatively stated, the beneficiary of the error must

prove that there is no reasonable possibility that the error contributed to the

verdict.” Special, 160 So. 3d at 1256.

Here, the Fourth District correctly pointed out that the Cantores were not

“hindered or restricted” in expressing their theory of liability against WBMC and

MCH. Cantore, 174 So. 3d at 1121. Indeed, the Cantores presented multiple

witnesses who testified that the actions of WBMC (including Dr. Freyre) and MCH

fell below the applicable standard of care, causing Alexis to suffer permanent brain

damage. However, counsel for WBMC and MCH relied on Dr. Sandberg’s

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responses to the hypothetical questions to argue to the jury that the Cantores failed

to meet their “promise” to show that the outcome in this case would have been

different had Alexis arrived at MCH earlier than she did. In making this argument,

counsel for WBMC and MCH each read directly from Dr. Sandberg’s deposition,

highlighting the erroneously admitted portions of his testimony. In Saunders, this

Court expressly disapproved of this type of burden-shifting argument regarding the

causation element of a medical malpractice claim. See 151 So. 3d at 442. But for

the erroneous admission of Dr. Sandberg’s deposition testimony, counsel could not

have made such an argument and put the Cantores in the position of needing to

prove that Dr. Sandberg’s testimony was false. Furthermore, the record reflects

that during deliberations the jury twice asked to review Dr. Sandberg’s deposition

testimony. After a five-week long trial with 42 witnesses, this was one of only two

witnesses the jury asked to hear from again. Finally, as the Cantores point out, Dr.

Sandberg’s testimony about how he would have treated Alexis if she had arrived at

MCH earlier was bolstered by Dr. White’s testimony that Dr. Sandberg’s responses

were “consistent” with his own experience with emergency ventriculostomies.

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 Accordingly, the erroneous admission of Dr. Sandberg’s testimony was not

harmless.5

CONCLUSION

For the foregoing reasons, Dr. Sandberg’s testimony about how he would

have treated Alexis had she arrived at MCH earlier was inadmissible and cannot be

considered harmless error. Accordingly, we quash the Fourth District’s decision in

Cantore, reverse the judgment in favor of WBMC and MCH, and remand for a

new trial.

It is so ordered.

LABARGA, C.J., and PARIENTE, QUINCE, and POLSTON, JJ., concur.
POLSTON, J., concurs with an opinion.
CANADY, J., dissents with an opinion, in which LAWSON, J., concurs.
LEWIS, J., recused.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.

POLSTON, J., concurring.

Although I believe there is jurisdiction as expressed in the majority opinion,

I share Justice Canady’s concern regarding the breadth of this Court’s holding in

5. Because it was not preserved at trial, we do not address the Cantores’
argument regarding the issue of agency and the inclusion of Dr. Freyre’s name on
the verdict form.

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Saunders v. Dickens, 151 So. 3d 434 (Fla. 2014). However, no argument to recede

from the holding in Saunders was raised here.

CANADY, J., dissenting.

The Fourth District’s decision in Cantore v. West Boca Medical Center, Inc.,

174 So. 3d 1114 (Fla. 4th DCA 2015), does not expressly and directly conflict with

this Court’s decision in Saunders v. Dickens, 151 So. 3d 434 (Fla. 2014), “on the

same question of law.” Art. V, § 3(b)(3), Fla. Const. Because this Court lacks

jurisdiction to review Cantore, I dissent.

My disagreement with the majority’s determination of jurisdiction is

twofold. First, Cantore and Saunders involve entirely different questions of law

regarding medical malpractice actions. Cantore involves the admissibility of

certain deposition testimony from a “subsequent” treating physician. In Saunders,

this Court’s majority couched its holding, in part, in terms of the relevance and

admissibility of the subsequent treating physician’s deposition testimony, but that

language in Saunders is mere dicta. The actual question of law in Saunders

involved not whether the testimony was admissible but rather whether the

testimony could be given conclusive effect regarding the element of causation.

Second, even if Saunders can properly be read to involve the issue of admissibility,

jurisdiction is still lacking because Cantore and Saunders do not involve

substantially similar controlling facts. Among other things, the nature of the

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testimony at issue in Cantore is significantly different from the specific type of

testimony proscribed by Saunders.

The Actual Question of Law in Saunders

This Court’s majority in Saunders chose to couch its holding, in part, in

terms of the relevance and admissibility of the deposition testimony. Saunders,

151 So. 3d at 443. Here, the majority’s determination of jurisdiction rests squarely

on the admissibility aspect of the “holding” in Saunders. See majority op. at 1

(quashing the Fourth District’s decision “[b]ecause the treating physician’s

deposition testimony . . . was inadmissible”). But Saunders’ reference to relevance

and admissibility cannot properly form the basis for jurisdiction. That reference is

not only dicta, but it purports to constitute a holding on an issue of law that was

never even presented to this Court.

In Saunders, the original treating physician (a neurologist) was the only

remaining defendant in the case at the time of trial. Saunders, 151 So. 3d at 436,

437. All of the other named defendants, including the subsequent treating

physician (a neurosurgeon), settled with the plaintiffs prior to trial. Id. at 437. The

subsequent treating physician was, however, later included as a Fabre6 defendant

on the verdict form. Id. During the subsequent treating physician’s deposition,

6. Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993).

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which was taken prior to his reaching a settlement with the plaintiffs, the

subsequent treating physician testified that he would not have done things

differently even if the original treating physician had ordered a cervical MRI

(which likely would have revealed the patient’s cervical compression). Id. at 438.

At trial, the defendant (the original treating physician) introduced the deposition

testimony of the subsequent treating physician, and defense counsel argued to the

jury during closing statements that given the deposition testimony, the plaintiffs

could not prove the requisite element of causation. Id. Plaintiffs’ counsel objected

to defense counsel’s closing argument “on the basis that this was a misstatement of

the law,” but the trial court overruled the objection. Id. at 438-39. The jury

returned a verdict in favor of the defendant physician. Id. at 439. On appeal, the

Fourth District framed the issue regarding defense counsel’s closing argument as

one involving the burden of proof. Namely, the Fourth District “held that” the

closing argument “was not improper” and that defense counsel “did not improperly

shift the burden of proof.” Id. There is nothing to indicate that the separate issue

of the admissibility of the deposition testimony was in any way presented to the

Fourth District.

On review of the Fourth District’s decision, this Court in Saunders similarly

framed the legal issue presented as one involving “the burden of proof in

negligence actions.” Id. at 440. Saunders concluded that defense counsel

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misleadingly misstated the law during closing statements when he claimed that the

subsequent treating physician’s deposition testimony rendered it impossible for the

jury to conclude that any negligence by the defendant physician caused the injury.

Id. at 442. Saunders then determined that the trial court committed harmful error

by allowing defense counsel to mislead the jury, for the following two reasons: (1)

defense counsel “repeatedly relied on [the deposition] testimony in his improper

burden-shifting statements,” and (2) the jury was not permitted to hear that the

deposition was taken while the subsequent treating physician “was in an

adversarial relationship with” the plaintiffs. Id. at 442-43. Without providing any

framework for doing so, the majority in Saunders couched its holding, in part, in

terms of the relevance and admissibility of the deposition testimony: “we hold that

testimony that a subsequent treating physician would not have treated the patient

plaintiff differently had the defendant physician acted within the applicable

standard of care is irrelevant and inadmissible and will not insulate a defendant

physician from liability for his or her own negligence.” Id. at 443 (emphasis

added). There is nothing to indicate that the issue of admissibility was in any way

presented to this Court. None of the analysis in Saunders addresses the issue of

admissibility.

Lacking any foundation in the Court’s analysis, the language in Saunders

regarding relevance and admissibility simply pops up from nowhere in the

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conclusion of the opinion. It is wholly unnecessary to the resolution of the case

and is thus mere dicta. Under article V, section 3(b)(3) of the Florida Constitution,

express and direct conflict cannot be established based on a purported conflict with

a sua sponte statement from this Court—whether couched as a holding or

otherwise—regarding some future issue that was never presented or analyzed in

the case. Rather, that constitutional requirement must be grounded in a decision

concerning an issue actually presented and considered by the Court. And in

Saunders, the only “question of law” that was actually “deci[ded]” involved the

burden of proof and whether certain testimony could be given conclusive effect

regarding the element of causation. See art. V, § 3(b)(3), Fla. Const.

To further illustrate how untethered the issue of admissibility was to the

decision in Saunders, one need only look to the other three cases examined by this

Court’s majority in Saunders—namely, Ewing v. Sellinger, 758 So. 2d 1196 (Fla.

4th DCA 2000), and the two conflict cases of Goolsby v. Qazi, 847 So. 2d 1001

(Fla. 5th DCA 2003), and Munoz v. South Miami Hospital, Inc., 764 So. 2d 854

(Fla. 3d DCA 2000). Not one of those three cases turned on the issue of

admissibility. Rather, those cases involved whether certain what-if testimony—or

the absence of such testimony—was dispositive regarding the element of

causation.

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 In Munoz, the issue was whether summary judgment was properly granted in

favor of certain defendants based on testimony from one of the defendant

physicians regarding “what he would or would not have done in response to

warnings which should have been but were never in fact given.” Munoz, 764 So.

2d at 856. In Goolsby, the issue was whether a directed verdict was properly

granted in favor of a defendant physician based on the absence of evidence

showing that any of the other physicians involved would have done anything

differently even if the x-rays had been properly read. Goolsby, 847 So. 2d at 1002-

03. And in Ewing, the issue was whether a directed verdict was properly granted

in favor of the defendant physician based on testimony from the subsequent

treating physician that he would not have done anything differently even if the

defendant physician had performed a risk evaluation. Ewing, 758 So. 2d at 1196-

97. These three district court cases all involve the conclusive effect of testimony

as opposed to the admissibility of that testimony. And this Court’s majority in

Saunders, 151 So. 3d at 443, unequivocally approved the conflict case of Munoz,

in which the Third District specifically noted that, although the what-if statements

at issue “surely cannot be given conclusive effect” to warrant summary judgment,

the statements were indeed admissible, Munoz, 764 So. 2d at 856.

The entire context of Saunders and the district court cases examined by

Saunders makes clear that the question of law decided in Saunders involved

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causation and the burden of proof, not admissibility. The actual holding of

Saunders is thus that testimony by a subsequent treating physician regarding what

he or she would have done cannot be given conclusive effect regarding the element

of causation. Although such testimony may create an inference of no causation,

ultimately the case cannot be decided as a matter of law based on what a particular

physician would have done as opposed to what a hypothetical physician operating

under the professional standard of care would have done.

In short, because the decisions in Saunders and Cantore involve entirely

different questions of law, this Court does not have jurisdiction to review Cantore.

The Differing Factual Nature of Saunders and Cantore

Even assuming that Saunders can properly be read to involve the issue of

admissibility, conflict jurisdiction still does not exist. Although Saunders and

Cantore both involve a “subsequent” treating physician’s testimony, they do so in

very different factual contexts, and the nature of the deposition testimony in

Cantore is not the specific type of testimony proscribed by Saunders. Because the

two cases do not “involve[e] substantially the same facts,” this Court does not have

jurisdiction. Nielsen v. City of Sarasota, 117 So. 2d 731, 735 (Fla. 1960).

As an initial matter, Cantore is distinguishable from Saunders based on the

underlying nature of the subsequent treating physicians in the two cases. For

example, unlike Saunders—in which, unbeknownst to the jury, the subsequent

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treating physician had been an active defendant at the time of his deposition—the

district court in Cantore described the subsequent treating physician as being “at

all times a neutral third-party witness with no motivation to deny wrongdoing or

avoid liability as he was never a defendant, unlike the testifying neurosurgeon in

Saunders.” Cantore, 174 So. 3d at 1121.7 Additionally, in Cantore, the district

court made clear that the subsequent treating physician was also intimately

involved in and “played such an influential role in the care at issue:” the original

treating physician and other medical personnel at the original treating physician’s

hospital “continually followed [the subsequent treating physician’s] instructions,

heeded his recommendations, and noted his preferences.” Id. at 1119. This

“hybrid” role, id., played by the subsequent treating physician is significantly

different than that in Saunders. Finally, unlike Saunders, the district court in

Cantore repeatedly referred to the subsequent treating physician as an “expert”

witness. See id. at 1115, 1119, 1120. Saunders itself recognized that medical

malpractice actions “often involve” expert witnesses testifying to hypotheticals

involving “what a reasonably prudent physician would have done and the effect

7. At the time of trial in Cantore, two defendants remained—(1) the hospital
at which the original treating physician provided care, and (2) the hospital that
provided the helicopter transportation service and at which the subsequent treating
physician performed the emergency ventriculostomy that saved the child’s life.
Cantore, 174 So. 3d at 1115-17, 1121.

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that such reasonable care would have had on the patient.” Saunders, 151 So. 3d at

442 (emphasis added). And that is exactly how the district court portrayed the

subsequent treating physician in Cantore—as an expert witness testifying

regarding hypotheticals. The majority here ignores the differences between the

subsequent treating physicians in Saunders and Cantore.

Cantore is also distinguishable from Saunders based on the underlying

nature of the deposition testimony in the two cases. In Saunders, this Court’s

majority proscribed (in dicta) certain specific testimony from a subsequent treating

physician—namely, testimony “that adequate care by the defendant physician

would not have altered the subsequent care.” Saunders, 151 So. 3d at 442. That

proscribed testimony is missing here. In Cantore, the “true condition” of the child

while under the physical care of the original treating physician was very much in

dispute at trial and was the critical factual issue for the jury to decide. As the

district court noted, the original treating physician’s “action (or inaction) was the

focus of the entire five-week trial,” Cantore, 174 So. 3d at 1121, and the plaintiffs’

“strategy during the course of the litigation and at trial was to demonstrate that [the

original treating physician] failed to appreciate [the child’s] true condition and as a

result provided inaccurate information to multiple healthcare providers at [Miami

Children’s Hospital], including, but not limited to, [the subsequent treating

physician],” id. at 1120. What is clear from the district court’s opinion is that the

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subsequent treating physician’s deposition testimony regarding the likelihood of

the same end result was based only on the underlying assumption that the child was

“alert and oriented,” as opposed to deteriorating neurologically. Id. at 1117. And

that underlying assumption “was based on his understanding of [the child’s]

condition at that time.” Id. at 1119. In fact, the district court specifically noted

that the subsequent treating physician testified “that he would have made different

recommendations to intubate and administer diuretics had he been told” that the

child’s condition was as the plaintiffs suggested—that is, deteriorating

neurologically. Id. at 1120. In other words, the subsequent treating physician

testified that he would have treated the child differently under the competing

factual scenarios. The gist of his “expert” testimony thus was that the child’s “true

condition” was the “key point” that would have determined “the timing of

intervention.” Id. And he explained why, assuming that the child was in fact

awake and oriented, it would not have mattered if the child had come under his

physical care two hours earlier than she did. Id. at 1117. Nothing within the four

corners of the Cantore opinion supports the conclusion that the subsequent treating

physician testified that he would not have treated the child differently—and that

the end result would have inevitably been the same—even if the child’s “true

condition” was as asserted by the plaintiffs at trial. The nature of the deposition

testimony in Cantore—as described by the district court within the four corners of

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its opinion—is dramatically different than that in Saunders, in which the original

treating physician did not correctly diagnose the patient, and in which the

subsequent treating physician testified that a correct diagnosis would nevertheless

not have affected the subsequent treatment of the patient.

Conclusion

The majority improperly bases its determination of jurisdiction in this case

on its “disagreement with the result reached by a district court applying” Saunders,

as opposed to on express and direct conflict with Saunders. Dorsey v. Reider, 139

So. 3d 860, 867 (Fla. 2014) (Canady, J., dissenting). Because Saunders and

Cantore involve entirely different questions of law, and because the controlling

facts in the two cases are not substantially similar, this Court does not have

jurisdiction in this case. Accordingly, I dissent.

LAWSON, J., concurs.

Application for Review of the Decision of the District Court of Appeal – Direct
Conflict of Decisions

Fourth District - Case No. 4D13-1985

(Palm Beach County)

Philip M. Burlington and Andrew A. Harris of Burlington & Rockenbach, P.A.,
West Palm Beach, Florida; Scott Schlesinger and Linda A. Alley of Schlesinger
Law Offices, P.A., Fort Lauderdale, Florida,

for Petitioner

Bruce M. Ramsey and Donna Krusbe of Billing, Cochran, Lyles, Mauro &

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Ramsey, P.A., West Palm Beach, Florida; Elliot H. Scherker, Julissa Rodriguez,
and Stephanie L. Varela of Greenberg Traurig, P.A., Miami, Florida; Scott
Solomon and Norman Waas of Falk, Waas, Hernandez, Cortina, Solomon &
Bonner, P.A., Coral Gables, Florida,

for Respondent

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