Subsequent Doctor’s Testimony Inadmissible as Evidence

Recently, the Supreme Court of Florida issued a ruling in Cantore v. West Boca Medical Center, that a treating physician cannot testify as to how he would have treated the patient had the patient been brought to a higher level care hospital sooner. Our Boca Raton Medical Malpractice attorneys explain the opinion.

Underlying Facts of the Injury in the Cantore Case

In July of 2008, Alexis Cantore (Cantore) suffered permanent brain damage while being treated for hydrocephalus at Miami Children’s Hospital and West Boca Medical Center. Two years prior to the event that led to this case, Cantore was diagnosed with hydrocephalus. After some procedures in 2007, scar tissue developed and a blockage was noted in June of 2008.

On July 3, 2008 at 2:30 P.M., Cantore began suffering from vomiting and extreme headaches. She was admitted to West Boca Medical Center by ambulance at 4:29 P.M. and was deemed to be “urgent”, the middle of three categories ranging from non-urgent, to urgent, to emergent. Time passed, and the doctor at West Boca Medical Center ran tests, eventually requesting an airlift to Miami Children’s Hospital.  At Miami Children’s Hospital, the doctor (Dr. Sandberg) did an emergent procedure where he drilled a hole into Cantore’s head to relieve pressure on the brain. While the procedure saved Cantore’s life, she suffered permanent brain damage and is unable to work or live independently for the rest of her life; she must consume all food through a tube.

The Claims for the Lawsuit in Cantore

Cantore and her parents sued West Boca Medical Center and Miami Children’s Hospital, alleging that the care provided on July 3, 2008 for Cantore was improper. Multiple expert witnesses testified regarding the timing of the tests and treatment, the transfer by airlift from West Boca Medical Center to Miami Children’s Hospital and the treatment Cantore received on the airlift flight. One expert, a pediatric surgeon, testified that he would have performed the emergency surgery much sooner, which would have prevented the herniation that caused Cantore’s permanent brain damage.

The Key Issue of the Cantore Case in the Supreme Court

The issue in this case was whether counsel for West Boca Medical Center should have been permitted to publish to the jury testimony from Dr. Sanberg. Dr. Sandberg was the pediatric neurosurgeon at Miami Children’s Hospital who performed the emergent procedure to relieve pressure on Cantore’s brain. He answered hypothetical questions in his deposition as to how he would have treated Cantore had she arrived an hour or two earlier to Miami Children’s Hospital.


The Decision by the Florida Supreme Court in Cantore

The Supreme Court found that Dr. Sandberg’s testimony was inadmissible and quashed the lower court’s decision against Cantore. The Court stated that “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.” Allowing subsequent treating physician’s statements in evidence would frustrate the ability for the jury to analyze each treating physician’s actions. 


The underlying focus of this case is the element of causation in a medical malpractice claim. Citing Gooding, a Florida Supreme Court Case from 1984, the court lays out the elements of a medical malpractice claim:

  • a duty by the physician,
  • a breach of that duty, and
  • causation

The first and second elements, duty and breach, are established when “the care provided by the physician was not that of a reasonably prudent physician”. The third element, causation, is met in Florida courts if the evidence shows that the defendant’s breach of duty “more likely than not” caused the plaintiff’s injury.

The Cantore case cites an earlier case called Saunders, which also featured a medical malpractice case where the defense relied on the deposition of a later doctor to defend their client. In Saunders, the second treating physician, the neurosurgeon, stated that, even if he had received the results of a cervical MRI (the defendant failed to act as a “reasonably prudent physician” by not ordering a cervical MRI), he would not have operated on the plaintiff.

The Supreme Court held that the neurosurgeon’s statement was “irrelevant and inadmissible”.   The Court explained that the “reasonably prudent physician” standard must be determined at each stage of the treatment for each medical individual in a medical malpractice claim. The Court continued that allowing such testimony 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.” The Court in Cantore explained that Dr. Sandberg’s statements were similar to the Saunders case and therefore should not have been admitted as evidence.


Testimony by a subsequent treating physician on how that physician would have treated the patient had the prior physician acted non-negligently should not be admissible into evidence.

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