Spalding v. Zatz, 5th DCA September, 2011 -
The 5th DCA recently held that a medical malpractice victim was not entitled to a new trial even though the defense expert's trial testimony materially varied from his deposition testimony, and plaintiff made no contemporaneous objection to the testimony. The appellate court found that the plaintiff had failed to timely move for mistrial, and instead cross-examined the defense expert regarding the change in testimony and even focused on the change in closing argument. Thus, the testimony did not rise to the level of fundamental error where plaintiff could not claim surprise at the expert's opinion and plaintiff was already prepared to address topic of opinion with contrary evidence.
Once again, Florida's courts have highlighted the importance of expert opinions in medical malpractice cases. Victims of medical errors need experienced attorneys who can manage the complex and unique circumstances of each medical malpractice case. That means, knowing how to ask the right questions, at the right time.