Valcin v. Public Health Trust of Dade County
Decision Date | 05 June 1984 |
Docket Number | No. 81-2131,81-2131 |
Citation | 10 Fla. L. Weekly 1989,473 So.2d 1297 |
Parties | 10 Fla. L. Weekly 1989 Gregoria VALCIN and Gerard Valcin, her husband, Appellants, v. PUBLIC HEALTH TRUST OF DADE COUNTY, d/b/a Jackson Memorial Hospital, Appellee. |
Court | Florida District Court of Appeals |
Virgin, Whittle & Garbis and Gary E. Garbis and Thomas P. Murphy, Miami, for appellants.
Walton, Lantaff, Schroeder & Carson and George Chesrow and Kathleen M. O'Connor, Miami, for appellee.
Before SCHWARTZ, C.J., and DANIEL S. PEARSON and FERGUSON, JJ.
In May 1978, after Gregoria Valcin had given birth to her fifth child at Jackson Memorial Hospital, she asked to be sterilized. Accordingly, Dr. Shroder, a member of the hospital staff, 1 performed a Pomeroy tubal ligation on Valcin six days after the birth. About a year and a half later, Valcin suffered a ruptured ectopic (tubal) pregnancy which almost caused her death. According to Valcin, this near fatality caused her permanent physical and emotional problems.
In 1981, Valcin, joined by her husband, brought suit against the defendant, Public Health Trust of Dade County, d/b/a Jackson Memorial Hospital, alleging that the hospital, through its agents, (1) breached its warranty that the sterilization procedure performed on Mrs. Valcin would be one hundred per cent effective, (2) failed to fully inform her of the risks of a sterilization procedure in obtaining her consent, and (3) negligently performed the procedure. From a summary judgment entered in the hospital's favor on all three counts, the Valcins appeal.
We affirm the judgment entered on the breach of warranty count. Section 725.01, Florida Statutes (1981), effective May 20, 1975, provides:
"No action shall be brought ... whereby to charge any health care provider upon any guarantee, warranty, or assurance as to the results of any medical, surgical, or diagnostic procedure ... unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by him thereunto lawfully authorized."
Because it is undisputed that the alleged warranty that the sterilization would be one hundred per cent effective was not in writing, Section 725.01 clearly bars this claim.
Although the alleged oral assurance of one hundred per cent effectiveness cannot support an action for breach of warranty, it can, as will be seen, support Mrs. Valcin's claims that her written consents to the surgery were fraudulently induced by this false assurance and/or were procured without the divulgence of necessary information, and that therefore, the surgery was performed without her informed consent. 2
Section 768.46(4)(a), Florida Statutes (1981), provides:
It appears without dispute that during her hospitalization, Mrs. Valcin executed two consent forms preceding the sterilization surgery. One of these forms, a "Consent for Operative and Other Special Procedures," states, in pertinent part, that:
There can be no doubt that the consent forms executed by Mrs. Valcin reflect that she consented to the risk of a future pregnancy. Section 768.46(4)(a) provides that a written consent, if, as here, validly signed by the patient, 3 is "conclusively presumed" to be valid. But by this very statute's express terms, this so-called conclusive presumption "may be rebutted if there was a fraudulent misrepresentation of a material fact in obtaining the signature."
Mrs. Valcin's deposition reveals that at the time she entered Jackson Memorial Hospital to give birth to her fifth child, and, manifestly, before the execution of the consent forms and the sterilization, she discussed with Jackson personnel, nurses and doctors, her desire to be sterilized after the birth of the child she was then carrying. According to Mrs. Valcin, "they" told her "it was very simple; that they would tie my tubes up and they cut it and burn it and the chances of getting pregnant was nil." Mrs. Valcin also testified that shortly before she signed the consent forms, she was told by two of the doctors that
Whether the indisputably false representations alleged to have been made to Mrs. Valcin by representatives of Jackson were in fact made and induced her to give her consent are quite clearly issues of fact which cannot be determined in a summary judgment hearing. 4 Moreover, any determination (if, indeed, this was the basis of the trial court's ruling) that, as a matter of law, the conclusively presumed validity of the written consents precluded Valcin from relying on the inconsistent earlier representation would be contrary to this court's holding in Morganstine v. Rosomoff, 407 So.2d 941 (Fla. 3d DCA 1981), where, in reversing a judgment for the defendant-doctor and ordering a new trial, we held that the jury was entitled to be instructed that a fraudulent misrepresentation of a material fact in obtaining the patient's signature on the written consent, if found, overcomes the conclusivity of the presumption of a valid consent. We said in Morganstine:
Likewise, in the present case, Valcin's testimony that she was assured about the absolute effectiveness of the sterilization (certainly a material factor in the decision to undergo the procedure), although controverted, raises a genuine issue of the validity of her consent, which must be resolved by the fact-finder.
Even if the fact-finder were to ultimately find against Valcin on the foregoing claim, there will remain to be resolved her independent claim that her written consents were not, in the first instance, entitled to any presumption of validity.
Under Section 768.46(4)(a), the consent must, inter alia, "meet the requirements of subsection (3)" before it is accorded presumptive validity. That subsection provides, in pertinent part:
"(a)1. The action of the physician, osteopath, chiropractor, podiatrist, or dentist in obtaining the consent of the patient or another person authorized to give consent for the patient was in accordance with an accepted standard of medical practice among members of the medical profession with similar training and experience in the same or similar medical community; and
§ 768.46(3), Fla.Stat. (1981).
Simply stated, no presumption of a valid consent will arise unless the consent is an informed consent. See Dandashi v. Fine, 397 So.2d 442 (Fla. 3d DCA 1981).
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