Appeals Court: Family Practice/Family Medicine Expert Witness Not Allowed

Appellant sued appellees for causing the death of his 88 year old mother.  To assist in his case, appellant hired a family practice/family medicine expert witness.  The court excluded this testimony, and the appellant appealed to the current court.  This court affirmed the opinion of the lower court.

Facts:  This case (Robert Siegel v. Cross Senior Care – Third District Court of Appeal – State of Florida – January 17th, 2018) involves 88 year old Sybil Siegel, who died of end stage dementia and end stage chronic obstructive pulmonary disease.  Her son, Robert Siegel, sued the defendant, Cross Gardens Care Center for negligence. A jury entered a verdict for Siegel, but it was much less than what was asked.  The trial court set aside the award and entered a judgment notwithstanding the verdict.  Siegel then appealed to this court.  At the trial level, Siegel’s theory relied almost fully on the testimony of family practice/family medicine expert witness Dr. Lee Fisher.  The trial court did not allow Dr. Fisher’s expert testimony, which is the basis of the appeal.

Discussion: Dr. Fisher focused his testimony on an alleged fourteen-day “gap” in nursing notes.  During this gap, Dr. Fisher opined that Ms. Siegel was not being monitored, her pneumonia flared up, then reaching a critical phase, and she would then been transferred to a hospital.  Dr. Fisher goes on to opine that if Ms. Siegel had been transferred, she would recovered and would have been able to live for three more years.

Dr. Fisher bases his opinions on the lack of nursing notes from a fourteen-day period.  From this “gap”, Dr. Fisher draws the conclusion that the nurses were not monitoring Ms. Siegel and her health.  However, there were medical reports indicating that Ms. Siegel was being monitored continuously during that time period.  Thus, the first part of Dr. Fisher’s opinion fails because he based his opinion of facts or inferences that were not supported by the evidence.

In addition, Dr. Fisher stated that Ms. Siegel had pneumonia on February 13th, 2013.  However, this is not supported by the medical records.  Pneumonia was ruled out by the doctors.  Thus, Dr. Fisher’s opinion is a contradictory inference and is not entitled to any evidentiary weight.  Dr. Fisher would have had to provide a fact-based chain of reasoning for his claim to be admissible.

Dr. Fisher’s next opinion that Ms. Siegel would have lived for three more years is based on his opinion that she had done so in the past after being hospitalized.  This line of reasoning does not follow because a person admitted to hospital at 60, 70, or 80 years will not have the same survival rate as that of an 88 year old.  Dr. Fisher does not provide any evidence or methodology as to how he came to this conclusion and was thus excluded by the lower court.

Last, Dr. Fisher’s theory is based on the fact that Ms. Siegel died of pneumonia.  According to the death certificate, this was not the case.

Conclusion:  The opinion of the trial court that Dr. Fisher’s opinion should be excluded was affirmed by the appeals court.