Giallanza v. Sands, 73--1134

• Decision Date: 03 July 1975
• Docket Number: No. 73--1134,73--1134
• Citation: 316 So.2d 77
• Parties: Thomas GIALLANZA, father and personal representative of the Estate of Bernadette Giallanza, Deceased, Appellant, v. Louis L. SANDS et al., Appellees.
• Court: Florida District Court of Appeals

Page 77

316 So.2d 77

Thomas GIALLANZA, father and personal representative of the Estate of Bernadette Giallanza, Deceased, Appellant, v. Louis L. SANDS et al., Appellees.

No. 73--1134.

District Court of Appeal of Florida, Fourth District.

July 3, 1975.

Rehearing Denied Aug. 13, 1975.

Thomas E. Hunt, of Mueller & Hunt, Fort Lauderdale, for appellant.

Mark Hicks, of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for appellee-Vincent J. Strack, M.D.

PER CURIAM.

Upon consideration and review of the record on appeal and the briefs herein we are of the opinion that genuine issues of material fact exist so as to preclude a summary disposition. Holl v. Talcott, Fla.1966, 191 So.2d 40; Nance v. Ball, Fla.App.1961, 134 So.2d 35; Lab v. Hall, Fla.App.1967, 200 So.2d 556. A summary judgment should be cautiously granted in negligence cases and in malpractice suits such as the instant case where genuinely triable issues of fact exist with respect to such matters as whether the appellee Strack was negligent in accepting decedent as a drug abuse patient without actually seeing her; whether the appellee Strack did in fact accept decedent as a patient and assumed the duty to treat; whether the failure to properly diagnose the case was the proximate cause of the death of decedent. The nature of the factual issues as presented precluded a determination at a summary proceeding and necessitated a full exploration by a trial. Lab v. Hall, supra; see also Levy v. Kirk, Fla.App.1966, 187 So.2d 401.

The sole and only appellate issue presented is whether there exists genuinely triable issues of fact so as to preclude a summary disposition permitting a litigant to have his day in court. The legal issue presented in this appeal is governed by applicable principles of law pertaining to summary judgments; the malpractice insurance controversy, the legislative considerations thereof and newepaper articles thereon are in nowise legally germane to that issue.

The liability of appellee Strack and his conduct under the circumstances are the very factual issues that necessitate resolution at a hearing on the merits. Cf. Sec. 768.13, F.S. As aptly observed, in 30 Fla.Jur., Summary Judgment, sec. 10:

'. . . Public policy requires that the courts be ever vigilant in making summary disposition of causes, lest the application of the rule result in destruction of the right of litigants to have the issues made by the pleadings tried by a jury of fellow citizens. . . .'

Therefore, as between a recognition of a litigant's constitutional right to a hearing on genuinely triable issues and a defendant's inconvenience until the issue of liability is resolved the court is constrained to follow the precedent of a jury determination. See Forrest v. Carter, Fla.App.1975, 308 So.2d 141.

Accordingly, the summary judgment is reversed and the cause remanded for further proceedings consistent herewith.

CROSS and MAGER, JJ., concur.

WALDEN, C.J., dissents, with opinion.

WALDEN, Chief Judge, (dissenting):

It's a sad day for Good Samaritans. Do a simple act of kindness and compassion and end up being sued for it. And what is specially galling, the suit here receives the stamp of judicial approval.

This is a medical malpractice action. The Fourth Amended Complaint alleges that Bernadette Giallanza died as a consequence of malpractice. Her father sued for damages under the wrongful death and survival statute. A large net was cast. In eight separate counts it caught up as defendants three dentists, two hospitals, and four medical doctors. One of the medical doctors was Vincent J. Strack, appellee here.

The trial court correctly assessed the claim against Dr. Strack as having no merit under the criteria found in Rule 1.510(c), F.R.C.P. Summary judgment was entered. The majority of this court's panel has chosen to reverse and cause the matter to go to trial. I would affirm the trial court decision and thereby approve the removal of Dr. Strack from the action.

While nowise denigrating the right of those persons suffering damages to seek recompense via medical malpractice actions, I nowise feel that the mere filing of a complaint absolutely entitles them to a jury trial. Medical malpractice, while receiving a lot of current publicity, is just another form of action which is to be judged by the common everyday rules of law. Such suits enjoy no special status or niche. It is possible for such claims to be frivolous or without merit so as to be subject to summary disposition just as any other claim. When this does happen, as here, it is our duty to discern it and eliminate it.

It is no small matter to refuse to strike down a frivolous claim and thereby cause an innocent defendant to be needlessly subjected to trial. A trial obviously causes expense, damage to professional reputation, time loss, and, necessarily, great emotional strain. Surely the summary judgment rule has some office, some time, some where. See dissent in Tucker v. American Employers Insurance Company, 218 So.2d 221 (4th DCA Fla.1969), at page 223. It is inappropriate for this court to fault the trial judge's decision and reverse by merely citing some words of plaintiff's charge gleaned from the complaint.

Tedious as it may be, it is necessary to demonstrate the lack of a genuine issue here and Dr. Strack's entitlement to judgment as a matter of law.

The first six counts, plus Count 8, of plaintiff's complaint charge others with the responsibility for the death of decedent from intra-cranial infection, or meningitis. I would say that plaintiff's entitlement to recovery, if any, is to be found in those counts.

The unsworn complaint against Dr. Strack is found in Count 7. While it incorporates by reference all the rest of the complaint, the incorporation adds nothing of significance. It alleges:

'COUNT VII

'39. The Defendant, VINCENT J. STRACK, MD, for many years last past has been holding himself out to the public as a medical doctor, skilled and able in his profession, and during this time has practiced the profession of a medical doctor at 1140 Bayview Drive, Fort Lauderdale, Florida.

'40. Defendant, VINCENT J. STRACK, MD was Negligent in accepting the patient as a drug abuse patient and was Negligent in accepting her without seeing her. The Defendant, VINCENT J. STRACK, MD was Negligent in that he specifically treated the case as a drug abuse case rather than a case of intra-cranial infection or meningitis. Furthermore, he Negligently diagnosed the fever of the patient as coming from the pulmonary area and failed to recognize intra-cranial disease. Specifically, the patient was admitted to BROWARD GENERAL MEDICAL CENTER on May 5, 1971 and was treated for 3 days as a drug abuse case and meningitis was not diagnosed until May 8, 1971. The patient died on May 9, 1971. Had diagnosis of intra-cranial infection or meningitis been made at the time of admission and had the patient been referred to neurology and neurosurgery, medical and surgical procedures could have been instituted which would have prevented patient's death.

'41. That by and through the neglect and carelessness of the Defendant, VINCENT J. STRACK, MD the deceased, BERNADETTE GIALLANZA, was caused to suffer great and excruciating pain and discomfort to her jaw, brain and meninges, and the negligence of the Defendant, VINCENT J. STRACK, MD was a direct and contributing and proximate cause of the decease and expiration of said BERNADETTE GIALLANZA on May 9, 1971. The negligent acts of the Defendant, VINCENT J. STRACK, MD, heretofore set forth were such that they did not conform to the standard of care prevalent in the community for such physicians.' (Emphasis added.)

By way of summation and further emphasis, Dr. Strack in the broadest and most general terms (I seriously question if the Count stated a cause of action because of the shortage of ultimate facts supporting the conclusions) was charged with four acts of negligence:

1. 'negligent in accepting the patient as a drug abuse patient'

2. 'negligent in accepting her without seeing her'

3. 'negligent in that he specifically treated the case as a drug abuse case rather than a case of intra-cranial infection or meningitis'

4. 'negligently diagnosed the fever of the patient as coming from the pulmonary area and failed to recognize intra-cranial disease.'

In granting summary judgment the trial court had before it two depositions only, those of Dr. Strack and Dr. Zeman. There is no conflict in the testimony. The only contradiction to be found in the record is between the above-listed four conclusions of negligence found in the pleading, as opposed to the uncontradicted explicit and sworn testimony found in the depositions. That uncontradicted testimony covers completely and lays to rest the above four pleaded charges of negligence. Most obviously the charges of negligence are false and without support in fact. It is manifest that this defendant never accepted the decedent as a 'patient.'

The trial court is permitted with the sworn testimony before it to pierce the shield of the pleadings to determine the existence of an issue. It may inquire into the qualitative substance of the complaint and whether it was filed in good or bad faith. Boyer v. Dye, 51 So.2d 727 (Fla.1951); and A & G Aircraft Service, Inc. v. Drake, 143 So.2d 703 (2d DCA Fla.1962). It is clearly the law that when the facts established on motion for summary judgment clearly show that there is no genuine issue of any material fact the court may pierce the paper issues made by the pleadings and render judgment on the merits. Parker v. Ferrara, 174 So.2d 574 (2d DCA Fla.1965); Vihon v. McCormick, 109 So.2d 400 (2d DCA Fla.1958); Warring v. Winn Dixie Stores, Inc., 105 So.2d 915 (3d DCA Fla.1958); See, 30 Fla.Jur., Summary Judgment § 13 (1974).

From the uncontradicted sworn testimony of Dr. Strack it appears:

1. He is only on the inactive courtesy staff of Broward General Hospital.

2. On the day the...