Holl v. Talcott

• Citation: 191 So.2d 40
• Decision Date: 01 June 1966
• Docket Number: No. 34239,34239
• Court: United States State Supreme Court of Florida
• Parties: Ellen Morgan HOLL, an incompetent, By and Through her husband and guardian, William E. Holl, individually, and Central Bank & Trust Co., substituted guardian, Petitioner. v. Leroy E. TALCOTT, Jr., Donald Andrus, George C. Austin and Victoria Hospital, Inc., Respondents.

Page 40

191 So.2d 40

Ellen Morgan HOLL, an incompetent, By and Through her husband and guardian, William E. Holl, individually, and Central Bank & Trust Co., substituted guardian, Petitioner. v. Leroy E. TALCOTT, Jr., Donald Andrus, George C. Austin and Victoria Hospital, Inc., Respondents.

No. 34239.

Supreme Court of Florida.

June 1, 1966.

Rehearings Denied Oct. 19, 1966.

Nichols, Gaither, Beckham, Colson & Spence and Robert Orseck, Miami, for petitioners

Carey, Terry, Dwyer, Austin, Cole & Stephens and Edward A. Perse, Miami, for respondents Leroy E. Talcott, Jr., and Donald Andrus.

Cecyl L. Pickle and Knight, Underwood, Peters & Hoeveler, Miami, for respondent Victoria Hospital, Inc.

Blackwell, Walker & Gray and James E. Tribble, Miami, for respondent George C. Austin.

O'CONNELL, Justice.

This cause was initiated as a malpractice action alleging failure to recognize and treat a urinary tract infection; to exercise reasonable care in the performance of surgery, resulting in the patient's contraction of encephalitis; to exercise reasonable care in supervising the operation and in administering the anesthesia and medications relative thereto; to diagnose and treat the patient's encephalitic condition; and properly to administer post-operative medication and to supervise post-operative care and treatment. The defendants were Talcott and Andrus, the surgeons; Austin, the anesthesiologist; and the hospital.

Each of the defendants moved for summary judgment and submitted in support thereof affidavits purporting to show that there had been no departure from accepted standards applicable to the services performed by each of them respectively. In opposition to the motions for summary judgment, the plaintiffs submitted a lengthy affidavit of Dr. Graubard, a New York surgeon and medical expert. The defendants then moved to strike the affidavit of Dr. Graubard on grounds of legal insufficiency. The trial court granted the motions to strike and the motions for summary judgment simultaneously, and entered summary final judgment for the defendants.

Plaintiff subsequently moved for rehearing or, alternatively, to reopen the judgment to permit the submission of additional affidavits designed to cure any defects in the first one. After hearing, at which a proposed new affidavit was proffered, the plaintiff's motion for rehearing was denied and the proffer of the affidavit refused.

The District Court of Appeal, Third District, affirmed in an opinion published at 171 So.2d 412, and petitioners seek review here by certiorari. In this opinion the petitioners will be referred to as plaintiffs and the respondents as defendants.

Plaintiffs' principal assertion of jurisdictional conflict is with the decision of the District Court of Appeal, Second District, in Matarese v. Leesburg Elks Club, Fla.App.1965, 171 So.2d 606. They contend that the decision under review is also in conflict with Humphrys v. Jarrell, Fla.App.1958, 104 So.2d 404, and Williams v. Board of Public Instruction, Fla.1962, 61 So.2d 493. We agree that there is sufficient conflict between the decisions cited and the one under attack here to justify our taking jurisdiction.

In the decision under review the language and format of the opinion seem to us to hold that once there is a motion for summary judgment that is supported by affidavit or other factual showing, the burden shifts to the opposing party to show by appropriate means that genuine and material issues do remain to be tried. Thus, after reproducing the statement of the case from the brief of the plaintiff-appellant in that court--which statement understandably contains 'It is readily apparent that the propriety of the trial court's granting of the motions for summary judgment must turn upon a determination of the legal sufficiency of the affidavit of Dr. David Graubard. * * *'

no challenge of the sufficiency of the movant's affidavits--the district court continued,

Our conclusion concerning the import of the opinion below is reinforced by a reading of Hardcastle v. Mobley, Fla.App.1962, 143 So.2d 715, strongly relied on herein, and also of other cases that were cited favorably in Hardcastle. Herring v. Eiland, Fla.1955, 81 So.2d 645 and Pritchard v. Peppercorn and Peppercorn, Inc., Fla.1957, 96 So.2d 769. In the Hardcastle case, supra, the same court that handed down the decision herein said, at 143 So.2d 717:

'It is not sufficient in defense of a motion for summary judgment to rely on the paper issues created by the pleadings, but it is incumbent upon the party moved against to submit evidence to rebut the motion for summary judgment and affidavits in support thereof or the court will presume that he had gone as far as he could and a summary judgment could be properly entered.'

A passage from the opinion in the Pritchard case, supra, which was decided on the authority of Herring, will suffice to show the relevance of both cases here:

'In Herring v. Eiland, Fla.1955, 81 So.2d 645, we held that where a plaintiff fails to present affidavits in support of the allegations of the complaint, or in the alternative affidavits in opposition to a motion for summary judgment showing reasons why essential facts could not be presented by contesting affidavits, then all that the trial judge has before him for consideration are the unsupported complaint and the depositions or affidavits of the movant for the summary judgment. If such depositions and affidavits under these circumstances reveal no cause for complaint it is proper to enter a summary judgment for the defendant.'

We believe that the position apparently taken in the opinion herein and in the other cases just cited is faulty and in conflict with the decisions cited by the plaintiffs, as well as with many others. As this court and other appellate courts have repeatedly held, the burden of proving the absence of a genuine issue of material fact is upon the moving party. Until it is determined that the movant has successfully met this burden, the opposing party is under no obligation to show that issues do remain to be tried. Humphrys v. Jarrell, supra; Matarese v. Leesburg Elks Club, supra; and Harvey Building, Inc. v. Haley, Fla. 1965, 175 So.2d 780.

This means that before it becomes necessary to determine the legal sufficiency of the affidavits or other evidence submitted by the party moved against, it must first be determined that the movant has successfully met his burden of proving a negative, i.e., the non-existence of a genuine issue of material fact. Matarese v. Leesburg Elks Club, supra. He must prove this negative conclusively. The proof must be such as to overcome all reasonable inferences which may be drawn in favor of the opposing party. Harvey Building, Inc. v. Haley, supra.

The proper rule on this subject was well applied in the Matarese case. There the District Court of Appeal, Second District, reversed a summary final judgment entered against a plaintiff, not because it found the movant- defendant's affidavits were successfully met by the opposing party-plaintiff, but because the movant's affidavits and other evidence did not establish the absence of genuine triable issues of material fact.

The rule simply is that the burden to prove the non-existence of genuine triable issues is on the moving party, and the burden of proving the existence of such issues We come then to merits. Plaintiffs argue that the trial court committed error in three instances: first, in entering summary judgment in favor of the defendants on the ground that no genuine issue of fact existed as to the liability of the defendants; second, in striking the original affidavit of Dr. Graubard; and, third, in denying the petitioner's motion to vacate the summary final judgment and refusing to receive the new affidavit of Dr. Graubard as proffered. We have concluded that the trial court did commit error in each of these instances.

is not shifted to the opposing party until the movant has successfully met his burden.

We have carefully considered the motions for summary judgment and the supporting affidavits of the defendants. We have read portions, but not all, of the almost 1000 pages of the record before us. The affidavits of the surgeons, Drs. Talcott and Andrus, are identical except for the names of the affiants. Each covers two and a half legal size pages including the style of the cause. Boiled down to essentials, these affidavits simply state that the operation performed by the surgeons was done after proper and usual tests and in accordance with accepted medical standards and that the post-operative care and visits were also rendered in keeping with such standards. The affidavits state that the surgical postoperative course of the patient was uneventful until about 48 hours after the operation when Mrs. Holl demonstrated abnormal neurological symptoms; that the complications presented were in the field of internal medicine and were treated as recommended by two specialists. The affidavits end with a final declaration that all that was done to and for the patient was consistent with accepted medical standards.

The affidavit of Dr. Austin, the anesthesiologist, is of the same length but somewhat more detailed as to what he did in preparing the patient for anesthesia and administering it. According to this affidavit the anesthesia was effective and uneventful as was the patient's recovery therefrom. Dr. Austin also related that on September 12, 1959, two days after the operation, he was called to the patient's room to find her in extreme distress and that he took heroic measures to restore her vital signs, meanwhile advising Dr. Talcott of her condition. The affidavit concludes that all the affiant had done was in full accord with accepted standards and that he was not guilty of negligence or malpractice.

The fourth defendant-respondent, the hospital, filed four affidavits in support of its motion for summary judgment. One, signed by Dr. Talcott,...