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Liberatore v. Kaufman2/5/2003
f what they were. McLaughlin was further questioned as to whether ACOG guidelines are met when a patient and a doctor jointly decide to do a VBAC and there are no contraindications; he confirmed that, under those circumstances, ACOG guidelines are met. He also testified that overall data suggests a seventy to eighty percent success rate with VBACs regardless of the reason for the original cesarean; according to Dr. McLaughlin, the ACOG guidelines, which provide that approximately eighty percent of patients having low transverse cesarean sections go on to have successful vaginal births the second time, are consistent with this data.
Dr. Clark, specializing in obstetrics and gynecology, opined that Dr. Kaufman did not deviate from the standard of care by pursuing a vaginal delivery or by inducing labor with Pitocin. Clark too was questioned about the ACOG bulletin and stated that "these [bulletins] don't represent the standard of care, that is, they don't represent the only way people can do it, but they do represent one appropriate standard of care." Clark testified that, as long as Dr. Kaufman followed the ACOG bulletin, he did not deviate from the standard of care:
This is certainly not the only way to manage a problem, there may be other ways which are equally, equally appropriate, but certainly no one can claim that if someone did it according to one of these bulletins that this would be in violation of standard of care.
In addition, Dr. Kaufman was questioned as to whether the ACOG bulletins represent the proper standard of care; he replied that "the . . . ACOG said, hey, it's safe to do this."
Experts cannot, on direct examination, bolster their testimony by testifying that a treatise agrees with their opinion. See ยง 90.706, Fla. Stat. (2000) ; Chorzelewski v. Drucker, 546 So. 2d 1118 (Fla. 4th DCA 1989); Quarrel v. Minervini, 510 So. 2d 977 (Fla. 3d DCA 1987); Tallahassee Mem'l Reg'l Med. Ctr. v. Mitchell, 407 So. 2d 601 (Fla. 1st DCA 1981); see also Green v. Goldberg, 630 So. 2d 606, 609 (Fla. 4th DCA 1993)(stating that " nder section 90.706, Florida Statutes (1991), authoritative publications can only be used during the cross-examination of an expert and not to bolster the credibility of an expert or to supplement an opinion of the doctor which has already been formed"). Despite this prohibition, the opinions of Drs. Clark and McLaughlin as to Dr. Kaufman's standard of care were clearly supported and reinforced with the ACOG bulletin. Dr. Kaufman himself even relied upon the bulletin to support the standard of care he provided Liberatore. Consequently, we agree that the ACOG bulletin was improperly used and that the trial court's ruling in this regard was error.
Additionally, we find that Dr. Kaufman should not have been permitted to testify that for the last three years he had been on a list of "top doctors" published by the Center for Study of Services. This court has previously found that such testimony was error. See Tomlian ex rel. Tomlian v. Grenitz, 782 So. 2d 905, 907 (Fla. 4th DCA)(finding it was error for the defendant physician "to blurt out that he had been listed as a `top doctor' in a local magazine"), review granted sub nom. Humana of Fla., Inc. v. Tomlian, 804 So. 2d 329 (Fla. 2001).
Accordingly, we reverse the final judgments entered in favor of appellees and the final judgments to tax costs as to Dr. Kaufman and West Boca Medical Center, and remand for a new trial. We find it unnecessary to address the other issues raised on appeal.
REVERSED and REMANDED.
POLEN, C.J., and TAYLOR, J., concur.
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