278 So.2d 601 (Fla. 1973), 42486, Wale v. Barnes

Docket Nº:42486.
Citation:278 So.2d 601
Opinion Judge:Author: Dekle
Party Name: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.
Attorney:Alan R. Schwartz, of Horton, Schwartz & Perse and Sams, Anderson, Alper, Spencer & Post, Miami, for petitioners.
Case Date:May 09, 1973
Court:Supreme Court of Florida
 
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Page 601

278 So.2d 601 (Fla. 1973)

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.

Page 602

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).

Page 603

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...

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