Friday, September 7, 2018

Court will allow medical-malpractice case in Florida woman's death after giving birth to a stillborn child

Posted By on Fri, Sep 7, 2018 at 11:42 AM

click to enlarge FLORIDA SUPREME COURT
  • Florida Supreme Court
In a legal battle focused on an expert witness, a sharply divided Florida Supreme Court on Thursday allowed a medical-malpractice case to move forward in the death of a 20-year-old woman after she had given birth to a stillborn child.

Justices, in a 4-3 decision, overturned rulings by a circuit judge and the 1st District Court of Appeal that the case should be dismissed. The decision also underscored long-running legal and political disputes about requirements for expert witnesses, who can play a pivotal role in medical-malpractice cases.

The Jackson County case stemmed from the January 2009 death of Shunteria S. McIntyre, who collapsed three days after giving birth to a stillborn child and undergoing a surgical procedure. McIntyre had sought care numerous times during her pregnancy because of illness and had lost 36 pounds over little more than two months, according to the Supreme Court ruling.

McIntyre’s estate began pursuing a malpractice case against two doctors, two hospitals and a medical practice. But the issues involving the expert witness arose during a legally required pre-suit investigation process that is designed, at least in part, to help resolve malpractice cases.



Part of that pre-suit process requires plaintiffs to offer an opinion from an expert witness about the medical issues involved. Attorneys for the McIntyre estate used a Texas obstetrician and gynecologist, Margaret M. Thompson, as their expert witness.

But attorneys for the defendants challenged whether Thompson met legal requirements for an expert witness and requested more information about her background. Part of the dispute involved the fact that she had gone to law school and graduate school during the years before McIntyre’s death —- raising a question about whether she met a requirement about being “duly and regularly engaged in the practice” of her profession.

Another part of the dispute involved whether the defendants were improperly denied additional information about Thompson’s background.

A circuit judge dismissed the case, finding that Thompson was not legally qualified to provide the needed expert opinion and that the estate had not properly complied with the pre-suit “discovery” process, according to the Supreme Court.

But in a 39-page majority opinion Thursday, Supreme Court Justice Barbara Pariente rejected those conclusions and said the malpractice case should be allowed to move forward. Pariente wrote, in part, that Thompson had a 30-year career practicing in obstetrics and gynecology.

“Her long career included serving as chief of the OB-GYN department at a large medical center and chief of staff at a small women’s hospital,” Pariente wrote, in an opinion joined by justices R. Fred Lewis, Peggy Quince and Jorge Labarga. “In short, Dr. Thompson is just the type of expert that the Legislature would consider is qualified.”

Also, Pariente pointed to concerns about defendants using the medical-malpractice legal requirements as a “sword” to try to prevent plaintiffs from being able to pursue cases.

But in a 13-page dissent, Chief Justice Charles Canady wrote that Thompson was not qualified to offer the expert opinion because she was not “duly and regularly engaged” in practicing obstetrics and gynecology when she provided an affidavit in 2011.

“The record reveals that at the time Dr. Thompson executed the affidavit, she had been retired from her OB/GYN practice for more than three years and by all indications had transitioned (or was transitioning) into a new career,” wrote Canady, who was joined in the dissent by justices Ricky Polston and Alan Lawson. “The fact that Dr. Thompson had a lengthy career as an OB/GYN before retiring in March 2008 does not defeat the plain language of the relevant statutes.”

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