Florida Supreme Court Establishes "Harmless Error Rule" For Civil Appeals

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The Florida Supreme Court's November 13, 2014 decision that establishes the Harmless Error Rule to be applied In civil cases on appeal is discussed in today's MedicalMalpracticeLawyers.com blog

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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

In today's blog posting, MedicalMalpracticeLawyers.com discusses the Florida Supreme Court's plurality opinion published on November 13, 2014 that establishes 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 establishing 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.

In this case involving a 38-year-old woman who had a Cesarean section delivery five weeks before her due date and died shortly after the placenta was removed, the core issue was whether she had died as a result of an amniotic fluid embolus (“AFE”), as alleged by the defense.

The plaintiff had attempted to cross-examine the defense AFE expert with regard to the defendant hospital’s over-diagnosing AFE, 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). The trial court did not permit the plaintiff to cross-examine the defense AFE expert as to evidence that the incidence of AFE at the defendant hospital was up to ten-fold greater than the national average, which would be evidence from which the jury may find that the hospital was over-diagnosing AFE and that the woman did not die as a result of AFE.

The Florida Supreme Court stated that the trial court had no discretion to exclude the plaintiff’s proffered cross-examination of the defense AFE expert and 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 plaintiff was also not permitted to question the medical examiner who performed the autopsy as to alleged witness tampering, according to the Florida Supreme Court opinion. The medical examiner had concluded that there was no evidence of AFE from the pathology slides and that the woman did not die from AFE. The trial judge did not permit the medical examiner to testify at trial that just before her earlier deposition 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 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 that 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 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.

Frank Special, et al., vs. West Boca Medical Center, et al. No. SC11-2511.

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Jeff E. Messing, President
MML Holdings LLC
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