Wale v. Barnes

• Decision Date: 09 May 1973
• Docket Number: No. 42486,42486
• Citation: 278 So.2d 601
• Parties: Gary Patrick WALE, by his mother and next friend, Pamela Wale, and Pamela Wale, Individually, Petitioners, v. Sheldon H. BARNES and Raphael S. Good, as partners comprising a partnership, et al., Respondents.
• Court: Florida Supreme Court

Page 601

278 So.2d 601

Gary Patrick WALE, by his mother and next friend, Pamela Wale, and Pamela Wale, Individually, Petitioners, v. Sheldon H. BARNES and Raphael S. Good, as partners comprising a partnership, et al., Respondents.

No. 42486.

Supreme Court of Florida.

May 9, 1973.

Rehearing Denied June 26, 1973.

Alan R. Schwartz, of Horton, Schwartz & Perse and Sams, Anderson, Alper, Spencer & Post, Miami, for petitioners.

James E. Tribble, of Blackwell, Walker & Gray, Miami, for respondents.

DEKLE, Justice.

This cause is before us on petition for writ of certiorari to review a decision of the Third District Court of Appeal reported at 261 So.2d 201 affirming the trial court's directed verdict in favor of the defendants in a malpractice case. Such decision in expressly relying upon Le Prince v. McLeod, 171 So.2d 189 (Fla.App.3d 1965); and Lane v. White, 167 So.2d 14 (Fla.App.3d 1964), creates a Misapplication of law as a basis for our review inasmuch as the factual situations in the cited cases vary materially from the facts set forth in the body of the opinion under review. Accordingly, we have conflict certiorari jurisdiction under Fla.Const. art. V, § 3(b)(3) (1973), F.S.A. McBurnette v. Playground Equipment Co., 137 So.2d 563 (Fla.1962); and Spivey v. Battaglia, 258 So.2d 815 (Fla.1972).

Plaintiffs, Mrs. Wale and her son, Gary, brought suit against Doctors Good and Barnes, individually and as partners. The plaintiffs framed their complaint in two counts which were negligence and trespass to the person, respectively. The first count alleged that co-defendant, Dr. Barnes, in the performance of his duty as an obstetrician during the delivery of Mrs. Wale's son at the Hialeah Hospital, Dade County, Florida, negligently and carelessly used forceps on the head of the infant causing severe head and brain injuries; and that Dr. Barnes' use of said forceps in this factual situation constituted negligence and unskillful medical practice below the standard of care required of obsterricians practicing in Dade County, Florida.

In their answers, defendants denied all allegations of negligence whereupon the case went to trial. The crucial facts surrounding the birth of Gary Patrick Wale as derived from the opinion and record are as follows: Mrs. Wale went to the Hialeah Hospital because the birth of her child became imminent. Dr. Barnes, who had been referred to her as a specialist, met her at the hospital and made an initial examination. The next morning Mrs. Wale developed labor pains. Dr. Barnes then measured her and based upon his judgment, he manually turned the child (without forceps) in an attempt to ease delivery. However, this procedure did not cause childbirth and Dr. Barnes decided to use forceps. He chose Tucker-McLane forceps even though the baby's head was 'considerably molded' (elongated) and applied the forceps to the baby's face several times during the delivery. After 8 to 10 minutes of a 'moderately difficult mid-forceps delivery' the baby was born. At birth, the child had serious injuries including bruises on the cheeks and a scalp laceration on the side of the head. These injuries were treated and Gary was subsequently discharged from Hialeah Hospital.

During the next three months Gary had unusual sleeping habits and the configuration of his head changed, daily. Gary then suffered from convulsions and was admitted to Jackson Memorial Hospital where two operations were performed on his head for subdural hematomas, commonly referred to as a blood clot on the surface of the brain. As a result thereof, Mrs. Wale and Gary filed this malpractice action.

At the close of the plaintiffs' case, the trial judge upon motion, directed a verdict for the defendants. On appeal, the Third District in a split decision affirmed the directed verdict stating that plaintiffs had not made a prima facie case on the question of proximate Causation.

The key issue for us in this malpractice case concerns the propriety of the trial court's directed verdict in favor of defendants (doctors) and the subsequent affirmance by the district court. These lower court rulings mean that plaintiffs did not present a prima facie case of medical malpractice. In other words, plaintiffs did not satisfy their burden of establishing (1) a standard of care owed by defendants to plaintiffs, (2) a breach of that standard, and (3) that said breach proximately caused the damages claimed. See Hunt v. Gerber, 166 So.2d 720 (Fla.App.3d 1964).

Our careful review, however, leads us to the opposite conclusion. The record in this cause contains sufficient evidence on these three prerequisites outlined above to make a prima facie case of medical malpractice which necessarily precludes a directed verdict for the defendants on the issue of liability.

The first two elements of a prima facie case of malpractice as set forth above are a standard of care and a breach of that standard. The evidence on these two elements is found in the testimony of Dr. Kahn. According to Dr. Kahn the use of Tucker-McLane forceps on Gary's 'molded' head during a mid-forceps delivery constitutes a departure from the acceptable medical standard of care in Dade County, Florida. Defendants, respondents herein, attack this testimony by arguing that it is 'insufficient' inasmuch as Dr. Kahn said the forceps slipped and the uncontradicted testimony in the record demonstrates that the forceps did not slip. This argument, however, overlooks the impact of Dr. Kahn's testimony. There is evidence in the record indicating that the forceps did not slip; even so, Dr. Kahn expressed his own opinion that the forceps did in fact slip. In this factual setting, the question of whether the forceps slipped being fairly debatable, the opposing viewpoints regarding this slippage are for the jury's consideration.

We now proceed to the last element in this cause for establishing a prima facie case of medical malpractice, to-wit: proximate causation, which is the apex upon which the district court turned its decision. The question is whether there is evidence demonstrating a causal connection between Gary's subdural hematomas and the aforesaid negligence attributed by Dr. Kahn to the use of Tucker-McLane forceps in order to effectuate childbirth in these circumstances. The district court's 2--1 decision based its affirmance of the directed verdict for the defendants upon the sole ground that the plaintiffs did not present evidence making a prima facie case on this matter of causation. According to the majority opinion, plaintiffs conceded that the forceps may not have caused the injury; and that the cause of Gary's injuries could have resulted from a non-negligent act, such as the trauma of merely being born or rough movement down the birth canal. In this context, the majority relied upon its previous decisions in Le Prince v. McLeod, Supra, and Lane v. White, Su...