Gooding v. University Hosp. Bldg., Inc.

• Decision Date: 19 January 1984
• Docket Number: No. 62828,62828
• Citation: 445 So.2d 1015
• Parties: Emily GOODING, as personal representative of the Estate of T. Hagood Gooding, deceased, Petitioner, v. UNIVERSITY HOSPITAL BUILDING, INC., d/b/a Memorial Hospital of Jacksonville, etc., Respondent.
• Court: Florida Supreme Court

Page 1015

445 So.2d 1015

Emily GOODING, as personal representative of the Estate of T. Hagood Gooding, deceased, Petitioner, v. UNIVERSITY HOSPITAL BUILDING, INC., d/b/a Memorial Hospital of Jacksonville, etc., Respondent.

No. 62828.

Supreme Court of Florida.

Jan. 19, 1984.

Rehearing Denied March 22, 1984.

Richard W. Ervin, Brian S. Duffy and Robert King High, Jr., of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, and V. James Facciolo of Searcy & Facciolo, Jacksonville, for petitioner.

Bruce S. Bullock and Robert M. Sharp of Bullock, Sharp, Childs, Mickler & Cohen, Jacksonville, for respondent.

Larry Klein, West Palm Beach, for Academy of Florida Trial Lawyers, amicus curiae.

Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, Miami, for Dade County Trial Lawyers Ass'n, amicus curiae.

James E. Cobb and Jack W. Shaw, Jr. of Mathews, Osborne, McNatt, Gobelman & Cobb, and John E. Thrasher, Jacksonville, for Florida Medical Ass'n, amicus curiae.

McDONALD, Justice.

This case is before us to review a district court decision, University Hospital Building, Inc. v. Gooding, 419 So.2d 1111 (Fla 1st DCA 1982), which certified the following questions:

1. WHETHER PLAINTIFF IN A WRONGFUL DEATH ACTION MUST PROVE THAT MORE LIKELY THAN NOT THE DEATH WAS CAUSED BY DEFENDANT'S NEGLIGENCE.

2. WHETHER A THEORY OF RECOVERY FOR LOSS OF A CHANCE TO SURVIVE PREDICATED UPON ALLEGED MEDICAL MALPRACTICE IS ACTIONABLE IN FLORIDA; AND, IF SO, (A) WHETHER THE TRIAL COURT PROPERLY INSTRUCTED ON SAME, AND (B) WHAT IS THE APPROPRIATE MEASURE OF DAMAGES?

Id. at 1115. We have jurisdiction under article V, section 3(b)(4) of the Florida Constitution. We answer the first question in the affirmative, the second question in the negative, and approve the decision under review.

On the afternoon of October 14, 1976 T. Hagood Gooding suffered lower abdominal pain and fainted at home. Mr. Gooding's wife called the office of Mr. Gooding's gastroenterologist, Dr. Borland, to inform Dr. Borland of these symptoms. Mr. Gooding was transported to the emergency room of Memorial Hospital of Jacksonville. The emergency room staff failed to take a history or to examine Mr. Gooding in the belief that Dr. Borland, who was in the hospital and aware that Mr. Gooding was coming to the emergency room, would arrive shortly. Dr. Borland did not respond to repeated paging. Mr. Gooding complained of increasing abdominal pain and asked to use a bedpan. Soon after straining on the bedpan, Mr. Gooding could not catch his breath. Dr. Borland arrived in the emergency room when Mr. Gooding went into cardiac arrest. Mr. Gooding died about forty-five minutes after arriving at the hospital. The autopsy revealed that he died from a ruptured abdominal aortic aneurysm which caused massive internal bleeding.

Emily Gooding, personal representative of Mr. Gooding's estate, brought a wrongful death action against the hospital alleging negligence by the emergency room staff in not taking an adequate history, in failing to physically examine Mr. Gooding, and in not ordering the laboratory tests necessary to diagnose and treat Mr. Gooding's abdominal aneurysm before he bled out and went into cardiac arrest. Mrs. Gooding's expert witness, Dr. Charles Bailey, a cardiologist, testified that the inaction of the emergency room staff violated accepted medical standards. Dr. Bailey, however, failed to testify that immediate diagnosis and surgery more likely than not would have enabled Mr. Gooding to survive. Even so, the trial court denied the hospital's motion for directed verdict on causation. In addition to the standard jury instruction on negligence and over the hospital's objection, the trial court instructed the jury that they could find for Gooding if the hospital destroyed Mr. Gooding's chance to survive. ¹ The jury found the hospital liable and awarded $300,000 in compensatory damages to Gooding's estate.

The hospital appealed. The district court reversed on the grounds that the trial court should have directed a verdict in favor of the hospital because Mr. Gooding's chances of survival under the best of conditions were no more than even. The plaintiff, therefore, could not meet the more likely than not test for causation. The district court certified the questions above and recognized the apparent conflict between this decision and the decisions of the third and fourth districts in Hernandez v. Clinica Pasteur, Inc., 293 So.2d 747 (Fla. 3d DCA 1974), and Dawson v. Weems, 352 So.2d 1200 (Fla. 4th DCA 1977).

To prevail in a medical malpractice case a plaintiff must establish the following: the standard of care owed by the defendant, the defendant's breach of the standard of care, and that said breach proximately caused the damages claimed. Wale v. Barnes, 278 So.2d 601, 603 (Fla.1973). In this case Dr. Bailey's testimony established the standard of care and the hospital's breach of that standard when its emergency room staff failed to diagnose and treat Mr. Gooding. The critical issue here is whether the district court correctly decided that the hospital was entitled to a directed verdict because the plaintiff failed to prove causation. We hold that it did and approve the decision of the district court.

In negligence actions Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiff's injury. See Tampa Electric Co. v. Jones, 138 Fla. 746, 190 So. 26 (1939); Greene v. Flewelling, 366 So.2d 777 (Fla. 2d DCA 1978), cert. denied, 374 So.2d 99 (Fla.1979); Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA 1977), cert. denied, 365 So.2d 710 (Fla.1978). Prosser explored this standard of proof as follows:

On the issue of the fact of causation, as on other issues essential to his cause of action for negligence, the plaintiff, in general, has the burden of proof. He must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.

Prosser, Law of Torts § 41 (4th Ed.1971) (footnotes omitted).

Mrs. Gooding first contends that the estate presented sufficient expert testimony for a jury to find the hospital's negligence more likely than not constituted a substantial factor in Mr. Gooding's death. She claims that the district court impermissibly reweighed the evidence and substituted its own judgment in place of the jury verdict. This is not so. Our review of the evidence convinces us that the testimony established a no better than even chance for Mr. Gooding to survive, even had there been an immediate diagnosis of the aneurysm and emergency surgery. Therefore, a jury could not reasonably find that but for the negligent failure to properly diagnose and treat Mr. Gooding he would not have died.

Mrs. Gooding also contends that Florida courts have recognized a cause of action for loss of a chance to survive, even where the patient's chances of survival were evenly balanced or less than likely in decisions of the third and fourth district courts of appeal in Hernandez v. Clinica Pasteur, Inc. and Dawson v. Weems. In Hernandez the wrongful death action was based upon the defendant's failure to diagnose and treat a heart condition when prompt diagnosis and treatment would have given the patient a better chance to live. The district court reversed a directed verdict in favor of the defendants, on the grounds that the plaintiff introduced sufficient evidence to create a jury question on causation.

The issue of proximate cause was as to whether appellees' malpractice contributed to the cause of death. In this connection, the testimony that appellant's decedent would have had a better chance to survive if he had received prompt medical attention was sufficient to form a basis for the submission of the issue to the jury.

293 So.2d at 750. In Dawson v. Weems the fourth district cited Hernandez to support a holding that a jury could properly find that a hospital caused a patient's death by giving him bank blood instead of the fresh blood requested, thereby depriving the patient of his "best chance" to survive, notwithstanding the plaintiff's failure to prove this deprivation either contributed to the patient's death or made his survival unlikely. 352 So.2d at 1203. These cases suggest a standard we cannot accept.

Neither Hernandez nor Dawson contains any reasoning or authority to support a rule relaxing the more likely than not standard of causation in medical malpractice actions although they do hold that a plaintiff may go to the jury on proximate cause merely by showing that the defendant decreased the chances for survival, no matter how small. Those cases are antithetical to our concept of proximate cause and are disapproved.

There is some authority for the loss of a chance to survive theory from other jurisdictions. The reasoning behind this theory was perhaps best stated in Hicks v. United States, 368 F.2d 626, 632 (4th Cir.1966) as follows:

When a defendant's negligent action or inaction has effectively terminated a person's chance of survival, it does not lie in the defendant's mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable....