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April 29, 2016 by admin

Insurance — Uninsured motorist — Damages — Future medical expenses — Evidence — Expert — Trial court erred in allowing orthopedic surgeon’s physician assistant to give his opinion on insured’s need for future surgery and the costs associated with such surgery

41
Fla. L. Weekly D995a
Top of Form

Insurance
— Uninsured motorist — Damages — Future medical expenses — Evidence —
Expert — Trial court erred in allowing orthopedic surgeon’s physician
assistant to give his opinion on insured’s need for future surgery and the
costs associated with such surgery

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant,
v. WILLIAM LONG, Appellee. 5th District. Case Nos. 5D14-3704 & 5D15-1749.
Opinion filed April 22, 2016. Appeal from the Circuit Court for Citrus County,
Patricia V. Thomas, Judge. Counsel: Rhonda B. Boggess and Gina P. Grimsley, of
Taylor, Day, Grimm & Boyd, Jacksonville, for Appellant. Christopher V.
Carlyle, of The Carlyle Appellate Law Firm, The Villages, for Appellee.

(BERGER, J.) State Farm Mutual Automobile Insurance Company
appeals the final judgment entered after a jury returned a verdict in favor of
William Long in the amount of $166,000. Because we agree with State Farm that
it was error to allow a physician’s assistant to testify as an expert on the
need and cost for a future surgery, we reverse and remand for a new trial on
damages.

Long injured his shoulder in a motorcycle collision.1 Thereafter, he sued his uninsured
motorist carrier, State Farm, seeking to recover $100,000 in uninsured
motorist/underinsured motorist coverage. The jury ultimately awarded Long
damages totaling $166,000, which included $116,000 for past and future medical
expenses. Of that amount, $46,283.96 consisted of stipulated past medicals.

In support of his claim for damages, Long called Mr. Kim
Nordelo, a physician’s assistant, to testify regarding future medical expenses.
Nordelo works exclusively with Long’s orthopedic surgeon, Dr. Frank Cannon.2 Nordelo testified that shoulder
issues make up a fair portion of his practice and that fifty percent of
patients who present with shoulder problems ultimately need surgery. Between
2009 and 2014, Nordelo saw Long approximately ten times.

Nordelo testified that during the course of Long’s treatment
he administered at least four cortisone injections to relieve pain. He
testified that cortisone provided relief for about three to four months.
Nordelo further explained that someone with Long’s condition can only receive a
limited number of injections because too many injections may result in a
weakened rotator cuff and tendon, leading to a tear. It was Nordelo’s opinion
that Long had “pretty much reached his limit as far as injections are
concerned.” He indicated that Long could probably have one or two more
injections but, beyond that, surgery would be the only other option to relieve
the pain. It was his opinion that Long “will need possibly one or two more injections
at most and then surgical decompression of the shoulder.” Nordelo testified
that the cost for each shoulder surgery would be roughly $1500 to $2000 for
surgeon’s fees, $2000 for anesthesia, $10,000 for facility costs, and $2000 to
$3000 for rehabilitation.

State Farm objected to Nordelo’s testimony, arguing that
because he is a physician’s assistant — not a surgeon — he was not competent
to give his opinion on Long’s need for a future surgery or the costs associated
with such a surgery.3 Specifically, State Farm argued:

My
concern about Mr. Nordelo is he’s a physician’s assistant. If he is going to
opine that there’s a future need for surgery, I don’t think he’s competent to
do that. He’s not a physician, he’s not a surgeon. He works under the approval
of a physician or a surgeon, Dr. Cannon.

. .
. .

PA’s
must work under supervision — a PA can only practice within the scope of
practice of their physician, and a PA can only practice under the supervision
of that physician. It’s the physician’s ultimate determination whether somebody
needs surgery or not. They aren’t qualified.

As for the costs, State Farm maintained that because Nordelo
was not the one actually billing for and performing the surgery, he was not
qualified to testify regarding the costs associated with the surgery.4

To qualify as an expert, the witness must have the requisite
knowledge, skill, experience, training, or education on the subject about which
the witness is called to testify. § 90.702, Fla. Stat.; Fla. R. Civ. P. 1.390.
The decision to qualify a witness as an expert is left to the sound discretion
of the trial judge. Penalver v. State, 926 So. 2d 1118, 1134 (Fla. 2006)
(citing Holland v. State, 773 So. 2d 1065 (Fla. 2000)). Although the
trial judge “has broad discretion in determining the range of the subjects on
which an expert can testify. . .”, id. (citing Pagan v. State,
830 So. 2d 792 (Fla. 2002)), this discretion is not unfettered. See GIW
S. Valve Co. v. Smith
, 471 So. 2d 81, 82 (Fla. 2d DCA 1985) (citing Carver
v. Orange Cty.
, 444 So. 2d 452 (Fla. 5th DCA 1983)); The Trustees of
Cent. States Se. and Sw. Areas, Pension Fund v. Indico Corp.
, 401 So. 2d
904, 905 (Fla. 1st DCA 1981).

Pursuant to Florida Statutes and Florida Administrative Law,
physician’s assistants must be supervised by a physician, and their services
must be delegated by the supervising physician. § 458.347(2)(e), Fla. Stat.
(2013).5 Physicians may delegate many tasks
and procedures to their physician’s assistant, but the duty to make a final
diagnosis is nondelegable. Fla. Admin. Code R. 64B8-30.012(2)(a) (2013).

Nordelo testified that he is not a medical doctor and that
all his work is done under the supervision of Dr. Cannon. He does not have the
authority to enter a note in a patient’s medical record without approval of the
doctor, and his notes must be countersigned by Dr. Cannon. Nordelo conceded
that whether Long needed surgery was Dr. Cannon’s call, not his.6 Nevertheless, he insisted “I have
worked with the man for an extended period of time and I know how he thinks.”

Because State Farm properly challenged Nordelo’s competence
to testify as an expert on the need for a future surgery, the burden was on
Long to establish, by a preponderance of the evidence, the basis for the
admissibility of Nordelo’s testimony. See Baan v. Columbia Cty.,
180 So. 3d 1127, 1131-32 (Fla. 1st DCA 2015). Long failed to satisfy his
burden. As State Farm convincingly argues, and as Nordelo directly testified,
the decision to diagnose the need for a future surgery rests solely with the
physician in this case Dr. Cannon, not the physician’s assistant.

We do not mean to imply that a physician’s assistant can
never qualify as an expert. Quite the contrary. Nordelo was certainly qualified
to testify regarding the treatment and care he provided.7 However, Nordelo’s ability to “know
how [Dr. Cannon] thinks” is not sufficient to establish that he had the
requisite knowledge and skill necessary to make him competent to opine on the
issue of whether, within a reasonable degree of medical certainty, Long
required future surgery. Such an opinion was beyond his qualifications and expertise.

Long insists that Chapter 766, which governs medical
malpractice cases, supports the proposition that a qualified health care
provider who is not a medical doctor is permitted to testify as an expert
regarding future damages. We are not persuaded by this argument.

Section 766.202(6), Florida Statutes (2013), defines
“medical expert” as “a person duly and regularly engaged in the practice of his
or her profession who holds a health care professional degree from a university
or college and who meets the requirements of an expert witness as set forth in
s. 766.102.”8 While Nordelo may qualify as a
medical expert under this statute for purposes of the medical malpractice
presuit screening process, this is not a medical malpractice case. Furthermore,
we have previously recognized that “section 766.102(5) provides a less
stringent standard for qualification of experts in the medical malpractice
screening process than might be required of an expert to offer testimony at
trial.” Apostolico v. Orlando Reg’l Healthcare Sys., Inc., 871 So. 2d
283, 284 n.4 (Fla. 5th DCA 2004).

We have been unable to locate any authority allowing a
physician’s assistant to testify as an expert at trial regarding future
treatment decisions when, as here, the witness was not authorized to make the
decision in a clinical setting. As previously stated, Nordelo testified that he
was not authorized to independently diagnose a patient’s need for surgery.
Thus, we conclude the trial court abused its discretion when it allowed him to
offer an opinion on the issue of whether a future surgery for Long was
appropriate and reasonably certain to occur.

Moreover, Nordelo’s testimony was not without significant
impact on the outcome of the trial as it was used exclusively to establish
Long’s claim for future damages.9 As such, the error in allowing his
testimony was not harmless. Accordingly, we reverse and remand for a new trial
on the issue of future damages. See Rolon v. Burke, 112 So. 3d
118, 120 (Fla. 2d DCA 2013) (explaining where there are damages that fall in a
discrete category separate from the damage awards disputed in a motion for new
trial, the new trial must be limited to the damage awards contested) (citing ITT
Hartford Ins. Co. of the Se. v. Owens
, 816 So. 2d 572, 577 (Fla. 2002))); McCown
v. Estate of Seidell
, 831 So. 2d 218, 220 (Fla. 5th DCA 2002) (“The
defendant does not contest the amount of past expenses . . . . Thus, we note
that because only the future medical and future lost wage claims are at issue,
the trial on damages shall be limited to same.” (citing Owens, 816 So.
2d at 572))).

Additionally, this case was consolidated with case number
5D15-1749, State Farm’s appeal of the final judgment awarding attorney’s fees.
The parties stipulated that the fee judgment should be reversed in the event
this Court reversed the final judgment awarding damages. Accordingly, the final
judgment awarding attorney’s fees is likewise reversed and remanded for further
proceedings.

REVERSED and REMANDED. (SAWAYA and WALLIS, JJ., concur.)

__________________

1At trial, it was determined that
Long was driving his motorcycle over the posted speed limit and while under the
influence of alcohol. The jury found he was 45% at fault for his injuries.

2Dr. Cannon was not called to testify
at trial.

3We decline to address State Farm’s
claim that Nordelo’s testimony constituted impermissible “pure opinion
testimony” because that precise argument was not raised below. Sunset
Harbour Cond. Assn. v. Robbins
, 914 So. 2d 925, 928 (Fla. 2005) (“In order
to be preserved for further review by a higher court, an issue must be
presented to the lower court if it is to be considered preserved.” (quoting Tillman
v. State
, 471 So. 2d 32, 35 (Fla. 1985))); see also Rojas v.
Rodriguez
, 185 So. 3d 710, 711-12 (Fla. 3d DCA 2016) (finding that failure
to raise a Daubert objection or request a Daubert hearing prior
to conclusion of trial prohibits raising such claim after the trial (citing Booker
v. Sumter Sheriff’s Office/N. Am. Risk Servs.
, 166 So. 3d 189, 192-93 (Fla.
1st DCA 2015))).

4Nordelo testified that he enters the
billing procedure codes, but that someone else takes that procedure code and
determines the billing.

5The 2014 and 2016 amendments to
section 458.347 do not affect this Court’s analysis. Ch. 2016-125, § 1, Laws of
Fla. (C.S.H.B. 375); Ch. 2014-18, § 15, Laws of Fla. (S.B. 936).

6The medical records of Dr. Cannon
and Ocala Orthopaedic Group were admitted into evidence without objection. A
record dated June 6, 2012, states: “[i]f cortisone injections no longer provide
him with significant benefit or relief of his impingement symptoms, surgical
intervention would be warranted.” However, this record was not countersigned by
Dr. Cannon. Notably, a September 27, 2012 note signed by Dr. Cannon recommended
cortisone injections in both shoulders for the impression of bilateral shoulder
impingement. Notes from Long’s last visit on September 26, 2013, revealed he
had full range of motion of both shoulders with negative signs of impingement.
No follow-up care was contemplated.

7It is entirely possible for a
witness to be an expert in one area but not another. For example, in Logan
v. Dayton Hudson Corp.
, 865 F.2d 789, 791 (6th Cir. 1989), the Sixth
Circuit upheld a district judge’s decision to grant a new trial after
determining it was error to allow a chiropractor qualified to testify as an
expert in chiropractic matters to opine on the plaintiff’s need for future
surgery. Like Nordelo, the chiropractor in Logan testified that he was
not licensed to perform surgery or give a diagnosis on whether surgery would be
required by a patient. Id. at 790. Similarly, in GIW, the second
district held that it was error to allow an expert witness who was a clinical
psychologist and clinical neurologist to opine on the future condition of the
brain resulting from an accident. 471 So. 2d at 82-83. While the psychologist
in GIW was authorized to give opinion testimony as to plaintiff’s
existing mental condition and existing organic brain damage, because the
witness was not a medical doctor, the witness was not qualified to opine as an
expert on the future deterioration of the plaintiff’s brain as a result of the
accident. Id. at 82.

8Section 766.102(5)(c)1., Florida
Statutes (2011) provides:

(c)
If the health care provider against whom or on whose behalf the testimony is
offered is a health care provider other than a specialist or a general
practitioner, the expert witness must have devoted professional time during the
3 years immediately preceding the date of the occurrence that is the basis for
the action to:

1.
The active clinical practice of, or consulting with respect to, the same or
similar health profession as the health care provider against whom or on whose
behalf the testimony is offered;

2.
The instruction of students in an accredited health professional school or
accredited residency program in the same or similar health profession in which
the health care provider against whom or on whose behalf the testimony is
offered; or

3.
A clinical research program that is affiliated with an accredited medical
school or teaching hospital and that is in the same or similar health
profession as the health care provider against whom or on whose behalf the
testimony is offered.

9Had the trial court properly
sustained State Farm’s objection to Nordelo’s testimony, Long would have had
the opportunity to call Dr. Cannon to testify regarding his claim for future
damages. We therefore decline to address State Farm’s alternative argument that
Nordelo’s testimony was too speculative to support the award for future
damages.

* *
*


 

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