In its plurality opinion published on November 13, 2014, the Supreme Court of Florida (“Florida Supreme Court”) established the test for harmless error in civil cases in a medical malpractice case that had been won by the defense at trial. The Florida Supreme Court held that the test for harmless error in civil appeals requires the beneficiary of the error to prove that the error complained of did not contribute to the verdict (the beneficiary of the error must prove that there is no reasonable possibility that the error complained of contributed to the verdict).
The Florida Supreme Court stated that the party contending harmful error must still identify the error and raise the issue before the appellate court, but the harmless error test it was espousing properly places the burden of proving harmless error on the beneficiary of the error. The Florida Supreme Court explained that by requiring the beneficiary of the error to demonstrate that there is no reasonable possibility that the error contributed to the verdict, this harmless error test discourages efforts to introduce error into the proceedings.
The Underlying Facts
In 2003, a 38-year-old woman had a Cesarean section delivery five weeks before her due date. She received spinal anesthesia for the procedure. A moment after the placenta was delivered, she became unresponsive, her blood pressure fell, and she went into cardiopulmonary arrest. The woman was temporarily resuscitated and transferred to the Intensive Care Unit, where she suffered a second cardiopulmonary arrest. Five hours after the birth of her son, she died.
The woman’s husband subsequently filed a Florida medical malpractice case alleging that the defendants (the hospital and the anesthesiologist) were negligent in administering anesthesia, in monitoring his wife’s system and controlling her fluids during surgery, and in responding to her cardiopulmonary arrests. The central issue during the Florida medical malpractice trial was the cause of the woman’s death: the defendants alleged that the woman died as a result of an amniotic fluid embolus (“AFE”), which is an allergic reaction that develops when a mother’s blood mixes with amniotic fluid. The plaintiff’s experts disagreed. Ultimately, the jury found in favor of the defendants.
The Alleged Harmful Errors
The plaintiff argued that the trial court committed harmful error when it limited his cross-examination of the defense AFE expert and when it excluded evidence related to two circumstances of alleged witness tampering.
The AFE Diagnosis Issue
The plaintiff contested the AFE diagnosis, which is a diagnosis of exclusion (i.e., ruling out other possible causes of the woman’s death leads to the conclusion that she died from AFE), and argued that the defendant hospital had a practice of over-diagnosing AFE. The plaintiff attempted to cross-examine the defense AFE expert with regard to the defendant hospital’s over-diagnosing AFE. The defense AFE expert estimated that the national average of AFE was approximately one in 20,000 births (with a range from one in 8,000 to one in 80,000 births). The defendant’s pulmonologist had testified that the deceased woman died from AFE, and that there were approximately 20,000 births at the defendant hospital per year, with one or two diagnoses of AFE per year. However, the defendant hospital had previously provided sworn evidence that there were approximately 2,200 births at the hospital per year, which the plaintiff argued would mean that the defendant hospital was over-estimating the incidence of AFE at the defendant hospital by about ten-fold. The trial court did not permit the plaintiff to cross-examine the defense AFE expert as to the above.
The Florida Supreme Court stated that under the Florida rules of evidence, the trial court had no discretion to exclude the plaintiff’s proffered cross-examination of the defense AFE expert (trial courts may exclude only evidence in which the “probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence”). The Florida Supreme Court held that the defendants, as the beneficiaries of the error, had not demonstrated that there is no reasonable possibility that the exclusion of the plaintiff’s intended cross-examination of their AFE expert contributed to the verdict (the jury should have been allowed to hear the defense AFE expert’s proffered opinion that if one to two out of 2,200 births each year at the defendant hospital resulted in a diagnosis of AFE, the defendant hospital was overdiagnosing AFE, thus drawing into question the credibility of the diagnosis of the deceased woman’s AFE diagnosis – “Barring an entire line of cross-examination of an expert witness concerning critical facts and opinions directly related to the core issue of a case necessitates recognition that the responses of the expert witness here would have yielded powerful impeachment evidence … the exclusion of this cross-examination was in fact harmful”).
Witness Tampering Evidence
The medical examiner who performed the autopsy on the woman’s body concluded that there was no evidence of AFE from the pathology slides, and concluded that the woman did not die from AFE. The plaintiff alleged that the defense attempted to intimidate the medical examiner because she did not agree that AFE was the cause of death. Evidence of witness tampering is admissible because it is “evidence of a consciousness of guilt, and there is nothing more sacred than judicial proceedings that are free from attempts to tamper with or intimidate witnesses.”
The medical examiner was not permitted to testify at trial that just before her deposition in this case began, her lawyer told her that one of the defense attorneys suggested to him that the medical examiner “might not want to embarrass herself by maintaining that the autopsy showed no evidence of AFE and that a world-renowned AFE expert was going to contradict her opinion and testify that the slides on which she saw no evidence of AFE were actually replete with evidence of AFE.”
The plaintiff wanted to have the medical examiner testify during trial as to the defense effort to intimidate her. The plaintiff proffered that the medical examiner would testify that she believed that the defense attorney’s statements and related conduct were an attempt to get her to change her testimony. The Florida Supreme Court stated that “[t]he circumstances strongly suggest that the defense or someone working on behalf of the defense was responsible for the events that occurred prior to [the medical examiner’s] deposition, and that party intended to and did exert pressure on [the medical examiner] in an effort to change her opinion” and thus the plaintiff satisfied his burden to show that the challenged testimony was relevant and the communication reasonably understood by the targeted witness as an attempt to intimidate her. The Florida Supreme Court held that the trial court’s failure to admit the proffered testimony was an abuse of discretion, and in light of the harmful error caused by the exclusion of the evidence, a new trial was required.
Source Frank Special, et al., vs. West Boca Medical Center, et al. No. SC11-2511.
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