Somer v. Johnson

• Citation: 704 F.2d 1473
• Decision Date: 16 May 1983
• Docket Number: No. 81-6006,81-6006
• Parties: 13 Fed. R. Evid. Serv. 123 Martha Marie SOMER, Plaintiff-Appellant, v. Charles A. JOHNSON, M.D. P.A., a Florida Corporation, Aquiles Ascencios, and Sarasota County Public Hospital Board, d/b/a Memorial Hospital, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1473

704 F.2d 1473

13 Fed. R. Evid. Serv. 123

Martha Marie SOMER, Plaintiff-Appellant, v. Charles A. JOHNSON, M.D. P.A., a Florida Corporation,

Aquiles Ascencios, and Sarasota County Public

Hospital Board, d/b/a Memorial Hospital,

Defendants-Appellees.

No. 81-6006.

United States Court of Appeals, Eleventh Circuit.

May 16, 1983.

John A. Lloyd, Jr., St. Petersburg, Fla., Edwin J. Bradley, Tampa, Fla., for plaintiff-appellant.

Lawrence J. Robinson, Linda B. Robinson, G. Hunter Gibbons, Sarasota, Fla., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before KRAVITCH, HENDERSON and ANDERSON, Circuit Judges.

ALBERT J. HENDERSON, Circuit Judge:

The plaintiff-appellant, Martha Somer, filed this diversity action for damages in the United States District Court for the Middle District of Florida against the defendants, Dr. Charles Johnson, Dr. Aquiles Ascencios and the Sarasota County Public Hospital Board. She alleged that the doctors were negligent in mistakenly diagnosing her abdominal pain as an ulcer, rather than a diverticulum, thereby resulting in unnecessary surgery. She also attributed negligence to the hospital in the selection and supervision of the physicians. During the trial, the district court directed a verdict favorable to the hospital and the jury returned a verdict for the two doctors.

Thereafter, Somer filed a motion for a new trial, asserting several grounds of error in the conduct of the trial. The district court denied the motion. She renews those contentions on appeal.

I.

Somer first challenges the correctness of the district court's instructions to the jury pertaining to the legal standard of care applicable to health care providers under Florida law. The initial part of the instruction detailed the standard set forth in Fla.Stat.Ann. Sec. 768.45 (West Supp.1983). ¹ Over the plaintiff's objection, the court continued,

[p]hysicians are not held liable, however, for honest errors of judgment. They are allowed a wide range in the exercise of their judgment and discretion. To hold a physician liable, it must be shown that the course which he pursued was against the course recognized as correct by his profession.

Trial Transcript at 1435-36. Somer complains that this quoted segment of the charge is overly confusing and that it states a duty of care which conflicts with the norm outlined in the statute. In reviewing her contention, the inquiry is essentially twofold. First, we must determine whether the instruction accurately delineates the substantive law of Florida. If not, then we must decide as a matter of federal procedure if the instruction rises to the level of reversible error. E.g., Van Cleef v. Aeroflex Corp., 657 F.2d 1094, 1099 n. 12 (9th Cir.1981); Bartak v. Bell-Galyardt & Wells, Inc., 629 F.2d 523, 528 (8th Cir.1980); Wright v. Albuquerque Auto-Truck Stop Plaza, Inc., 591 F.2d 585, 587 (10th Cir.1979); see also Southern Pacific Transportation Co. v. Smith Material Corp., 616 F.2d 111, 113-14 (5th Cir.1980); see generally 5A J. Moore, Moore's Federal Practice, p 51.02-1 (2d ed. 1982).

No clear statement of the duty of care imposed on physicians in Florida emerges from the relevant case and statutory authority. Thus, the resolution of the threshold issue requires a careful examination of several developments in that state's law governing medical malpractice. The instruction in controversy in this case had its genesis in a 1957 decision, Bourgeois v. Dade County, 99 So.2d 575 (Fla.1957). In that case, the Supreme Court of Florida observed, in dicta, that

the science of medicine is not an exact science. Physicians are not to be held liable for honest errors of judgment and discretion. To hold one liable it must be shown that the course which he pursued was clearly against the course recognized as correct by his profession.

99 So.2d at 577. Based on that language, the intermediate appellate courts of the state consistently approved instructions similar to the one challenged here. See, e.g., Hickman v. Employers' Fire Insurance Co., 311 So.2d 778 (Fla.Dist.App.1975); Potock v. Turek, 227 So.2d 724 (Fla.Dist.App.1969), cert. denied, 238 So.2d 106 (Fla.1970).

In 1976, the Florida legislature enacted an extensive statutory scheme concerning medical malpractice. Fla.Stat.Ann. Secs. 768.40-768.56 (West Supp.1983). One provision, Sec. 768.45, specifically codified the standard of care a "health care provider" must observe to avoid liability for malpractice:

"[T]he accepted standard of care for a given health care provider shall be that level of care, skill, and treatment which is recognized by a reasonably prudent similar health care provider as being acceptable under similar conditions and circumstances."

See Fla.Stat.Ann. Sec. 768.45(1) (West Supp.1983). The statute further enunciates two alternative definitions of "similar health care provider" which, in effect, distinguish between specialists and general practitioners. See Fla.Stat.Ann. Sec. 768.45(2) (West Supp.1983); see generally French, Florida Departs from Tradition: The Legislative Response to the Medical Malpractice Crisis, 6 Fla.St.U.L.Rev. 423, 438 (1978). The enactment contains no reference to "honest errors of judgment" or a "wide range" of discretion.

About the same time, the Florida Supreme Court Committee on Standard Jury Instructions adopted a model instruction relating particularly to medical malpractice. Florida Standard Jury Instructions in Civil Cases 4.2(a) (Supreme Court Committee on Standard Jury Instructions in Civil Cases 1976). The suggested charge is similar to the standard of care declared by the legislature in Sec. 768.45(1). It reads,

[n]egligence is the failure to use reasonable care. Reasonable care on the part of a [physician] is the use of that knowledge, skill and care which is generally used in similar cases and circumstances by [physicians] in communities having similar medical standards and available facilities.

Standard Jury Instructions 4.2(a). However, the Committee not only echoed the standard articulated in the statute, but it also expressly condemned the type of charge given by the district court in this case. According to the Committee, such a charge is "confusing, difficult of application and argumentative." ² Standard Jury Instructions 4.2(a) comment 1.

Since the adoption of the new legislation and the promulgation of the standard instruction, the Florida intermediate appellate courts have uniformly expressed their disapproval of the older charge. ³ For example, in Schwab v. Tolley, 345 So.2d 747, 753 (Fla.Dist.App.1977), the court, citing the Supreme Court Committee's note, affirmed a trial court's refusal to include the "honest error" instruction. In Webb v. Priest, 413 So.2d 43, 46-47 (Fla.Dist.App.1982), another court examined the correctness of a charge incorporating the "wide range" of discretion language, as well as the "clearly against the course recognized" standard. The trial judge in that case, like the district court here, combined those statements with an instruction similar to the Standard Jury Instruction 4.2(a). 413 So.2d at 46. On appeal, the court concluded that the charges constituted error and, when considered in conjunction with other errors committed during the trial, a cause for reversal. Id. at 46-47. The Florida appellate court characterized the instructions as "confusing in that they suggest conflicting standards of proof ... and ... confusing as to the duty of care owed by the physician." Id. at 47.

The same Florida District Court of Appeals later reversed a judgment solely on the basis of such a charge. Veliz v. American Hospital, Inc., 414 So.2d 226, 228 (Fla.Dist.App.1982). After giving Standard Jury Instruction 4.2(a), the trial court added the statement that "[t]he practice of medicine is not an exact science and nurses are not to be held liable for honest errors of judgment." 414 So.2d at 227. Finding the two formulations contradictory, the appellate court observed,

[u]nder the instructions in this case, the jury could have found the defendant not liable because it believed the nurse on duty made an honest mistake of judgment while at the same time it also could have believed her conduct constituted a clear departure from the required standard of care.

Id. at 228.

Against this background, the defendants characterize the posture of the Florida law in this respect as a direct conflict between the supreme court of that state and the district courts of appeals. Thus, they reason, a federal court sitting in a diversity case is required to follow the pronouncements of the state's highest court. See, e.g., Flintkote Co. v. Dravo Corp., 678 F.2d 942, 945 (11th Cir.1982). Here, however, we are confronted with a question never addressed by the Florida Supreme Court, i.e., whether the passage of Sec. 768.45 by the state legislature in 1976 supplanted the common law duty of care articulated in Bourgeois. In the absence of such a judicial determination, we must determine how the state courts would resolve the issue. See, e.g., Arceneaux v. Texaco, Inc., 623 F.2d 924, 926 (5th Cir.1980), cert. denied, 450 U.S. 928, 101 S.Ct. 1385, 67 L.Ed.2d 359 (1981).

In Florida, it is well established that the legislature has the authority to abrogate the common law. E.g., State v. Egan, 287 So.2d 1, 6 (Fla.1973). Abrogation may be implied from an inconsistency between the legislative enactment and the former common law rule. See, e.g., Ripley v. Ewell, 61 So.2d 420, 421 (Fla.1952); see also Wax v. Wilson, 101 So.2d 54, 57 (Fla.Dist.App.1958). The question then becomes whether the scope of the duty established by the statute conflicts with the standard announced in Bourgeois, and reflected in the instructions presently under attack. The intermediate appellate courts of Florida have addressed this problem and concluded that the two expressions are indeed contradictory. See Veliz, 414 So.2d at 228; Webb, ...