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Liberatore v. Kaufman2/5/2003
ON MOTION FOR REHEARING
We deny the motion for rehearing but withdraw our prior opinion filed on July 3, 2002, and substitute the following in its place.
Appellants, Carmela and Umberto Liberatore, brought a malpractice action against Dr. Samuel Kaufman and West Boca Medical Center, alleging negligence in the care and treatment of Carmela in the delivery of her second child. After a two-week trial, the jury returned a verdict for the defendants. Thereafter, both final judgments on the merits and final cost judgments were entered in favor of the appellees. We reverse, finding that the trial court abused its discretion in allowing defendants to use a bulletin published by the American College of Obstetricians and Gynecologists (ACOG) to bolster the testimony of their expert witnesses and in allowing Dr. Kaufman to testify that he was recognized as a "top doctor" with a "good reputation" in a national survey.
Carmela Liberatore had her first baby in New York in 1990 by cesarian section. She became pregnant with her second child in 1993 and began prenatal care with Dr. Kaufman. Kaufman and Liberatore agreed that she would try a VBAC (Vaginal Birth After Cesarean) procedure for her second delivery. Liberatore did not go into labor on her own, and, as agreed, on November 18, 1993, she went to the hospital to be induced. At approximately 8:30 a.m., the nurses administered Pitocin to induce labor. The Pitocin was ineffective and, at about 5 or 6 p.m., Dr. Kaufman broke her water. Liberatore began experiencing pain and required an epidural around 8:00 p.m. Around midnight, Liberatore began convulsing and Dr. Kaufman was called back to the hospital. Dr. Kaufman was forced to perform a vacuum extraction to remove the baby because the baby's heart rate was critically elevated.
Appellants alleged that as a result of Kaufman's vacuum extraction, Liberatore suffered significant vaginal lacerations, cervical lacerations, uterine atony and vaginal bleeding, which nearly caused her death. Dr. Kaufman attempted to suture some of the lacerations, but this did not stop the bleeding. Kaufman performed a hysterectomy, removing her uterus and cervix, but the bleeding still did not stop. Liberatore was stitched up and taken to the Intensive Care Unit, but continued to bleed. Dr. Klein, a specialist, was then brought in to perform hypogastric surgery. Approximately six or seven hours had passed since Liberatore first started bleeding after childbirth, and she had been transfused with between three to five times her normal blood volume. Appellants alleged that due to these complications, Liberatore was later forced to have her ovaries removed and undergo additional surgeries.
After a two-week medical malpractice trial, the jury returned a verdict in favor of Dr. Kaufman and the medical center. On appeal, the Liberatores challenge the trial court's evidentiary rulings regarding appellees' use of a bulletin published by the American College of Obstetricians and Gynecologists (ACOG) to question defense experts. ACOG bulletins are developed by a committee of six or seven ACOG members and are sent to member obstetricians throughout the country. These bulletins concern suggested treatment regimens, current trends, and other issues of concern to the practicing obstetrician.
Dr. William McLaughlin, West Boca Medical Center's expert obstetrician-gynecologist, testified that the care and treatment provided by Dr. Kaufman and the hospital to Ms. Liberatore did not deviate from the standard of care. Dr. McLaughlin was then questioned regarding his familiarity with the ACOG bulletins. He confirmed that he was, in fact, familiar with the bulletins and gave a brief description o
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