Grenitz v. Tomlian6/5/2003
Rehearing petition filed: 6/20/2003; Rehearing denied: 10/21/2003.
MARK S. GRENITZ, M.D., PETITIONER,
v.
JACOB THOMAS TOMLIAN, RESPONDENT.
HUMANA OF FLORIDA, INC., ETC., PETITIONER,
v.
JACOB THOMAS TOMLIAN, RESPONDENT.
Application for Review of the Decision of the District Court of Appeal - Direct Conflict Fourth District - Case No. 4D00-654 (Broward County)
Debra Potter Klauber of Haliczer, Pettis & White, P.A., Ft. Lauderdale, Florida for petitioners Mark S. Grenitz, M.D., et al.
Sylvia H. Walbolt, E. Kelly Bittick, Jr. and Joseph H. Lang, Jr. of Carlton Fields, P.A., St. Petersburg, Florida for petitioner Humana of Florida, Inc., etc.
Todd R. Schwartz of Ginsberg & Schwartz, Miami, Florida; and Sheldon J. Schlesinger and Robert W. Kelley of Sheldon J. Schlesinger, P.A., Ft. Lauderdale, Florida for respondents
The opinion of the court was delivered by: Lewis, J.
We have for review Tomlian v. Grenitz, 782 So. 2d 905 (Fla. 4th DCA 2001), which expressly and directly conflicts with the decisions in GIW Southern Valve Co. v. Smith, 471 So. 2d 81 (Fla. 2d DCA 1985), and Bishop v. Baldwin Acoustical & Drywall, 696 So. 2d 507 (Fla. 1st DCA 1997). We have jurisdiction. See art. V, ยง 3(b)(3), Fla. Const.
The facts, as set forth in the district court's opinion, are as follows:
After what appeared to be a normal pregnancy, plaintiffs' son [Jacob Tomlian] was born with significant brain damage known as cerebral palsy, resulting from oxygen deprivation. Plaintiffs contended that the injury occurred during a difficult birth as a result of the negligence of the obstetrician and hospital, but defendants contended that it had occurred earlier, between twenty-six to thirty-four weeks of the mother's pregnancy which, according to defendants, is when this type of brain damage usually occurs.
Plaintiffs' expert neuropsychologist, who testified that the injury was caused by oxygen deprivation at birth, was not permitted to give his opinion as to why the injury had not occurred weeks prior to the birth, as contended by defendants. The trial court sustained defendant's objections to this testimony based on the state of the law as it existed at that time, which was that a psychologist, who is not a medical doctor, is not qualified to render an opinion as to the cause of brain damage. Executive Car & Truck Leasing , Inc. v. DeSerio, 468 So. 2d 1027 (Fla. 4th DCA 1985). Tomlian, 782 So. 2d at 906.
The district court reversed the jury verdict for defendants and remanded the case for a new trial, noting that in Broward County School Board v. Cruz, 761 So. 2d 388 (Fla. 4th DCA), approved, other grounds, 800 So. 2d 213 (Fla. 2001), the Fourth District had receded from its prior holding in DeSerio, which it now considered to be contrary to the greater weight of authority. See Cruz, 761 So. 2d at 394 (Fla. 4th DCA 2000) (holding that psychologists are not precluded from testifying as to the cause of brain injury, based in part upon the district court's acknowledgment that, after DeSerio, the Florida Legislature had broadly defined the practice of psychology in section 490.003(4), Florida Statutes (1997)). The district court also rejected the argument that the error was not preserved because of the two-issue rule, which provides that "where two issues are submitted to a jury, only one of which is infected with error, the appellate court will assume the jury found for the prevailing party on the issue which was error-free, unless it can be determined from the
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