Atkins v. Humes

• Decision Date: 01 April 1959
• Citation: 81 A.L.R.2d 590,110 So.2d 663
• Parties: Frank B. ATKINS and Rebecca Atkins, an infant, by Frank B. Atkins, her father and next friend, Petitioners, v. Karl T. HUMES, Respondent.
• Court: Florida Supreme Court

Page 663

110 So.2d 663

81 A.L.R.2d 590

Frank B. ATKINS and Rebecca Atkins, an infant, by Frank B. Atkins, her father and next friend, Petitioners, v. Karl T. HUMES, Respondent.

Supreme Court of Florida.

April 1, 1959.

Rehearing Denied May 4, 1959.

Dayton, Dayton & Luckie and Norma Jean Wagner, Dade City, for petitioner.

P. B. Howell, Bushnell, and Savage & Mills, Ocala, for respondent.

ROBERTS, Justice.

This cause is before the court on certiorari granted to review a decision of the District Court of Appeal, Second District--Atkins v. Humes, Fla.App.1958, 107 So.2d 253, 256--affirming a summary judgment in favor of the defendant, respondent here, entered in the trial court.

The suit was one for malpractice brought by the petitioners, Frank B. Atkins and his three-year-old daughter, Rebecca ('the plaintiffs' hereafter) against the defendant-respondent, Dr. Humes, in which Dr. Humes was charged with negligence in treating Rebecca for a simple fracture of her elbow, allegedly resulting in a permanent injury to her hand known as ischemic paralysis or 'Volkmann's contracture.' No complaint was made as to the method of treatment adopted by Dr. Humes--the reduction of the fracture, flexion of the arm at a 45-degree angle, and application of a plaster-of-paris cast to the arm. The plaintiffs contended that Dr. Humes was negligent and careless in his actual performance of the treatment in (1) negligently or unskillfully applying the cast so as to cause a 'pressure sore' on Rebecca's arm that resulted in the Volkmann's contracture, and (2) negligently failing to heed the classic warnings of Volkmann's contracture while the cast was on the child's arm and to bi-valve the cast to remove the pressure.

The discovery depositions of the defendant, two other physicians, and Rebecca's father and mother were taken by the parties; and upon the basis of the pleadings and these depositions the defendant moved for summary judgment. The plaintiffs relied also upon these depositions in opposition to the motion and, additionally, upon the affidavits of lay persons--relatives and neighbors of the plaintiffs--and the deposition of another physician. The trial judge concluded that the doctors' depositions proved there was no negligence on the part of Dr. Humes and that this showing was not successfully controverted by plaintiffs. He thereupon entered summary judgment for Dr. Humes.

In affirming the summary judgment the District Court of Appeal relied, in part, on the following rule:

'The overpowering authority is that generally expert testimony is necessary to sustain a malpractice action against a physician or surgeon. Annotation 141 A.L.R. 6; and Foster v. Thornton, 1936, 125 Fla. 699, 170 So. 459. An exception to this general rule is applied in cases where want of skill or lack of care on the part of the physician or surgeon is so obvious as to be within the understanding of laymen and to necessitate only common knowledge and experience to judge it. In such cases, expert evidence is not required.'

Finding that, as to the charges of negligence, the depositions and affidavits did not reveal a situation falling within the exception to the general rule and, in addition, that the plaintiffs did not show any 'competent basis' for a jury determination in their favor of the issue of proximate cause, the District Court of Appeal affirmed the summary judgment in favor of Dr. Humes.

The plaintiffs contend that the decision of the appellate court is in direct conflict with the many decisions of this court respecting the propriety of a summary judgment when there are genuine issues of material facts, and with the decision of this court in Dohr v. Smith, Fla.1958, 104 So.2d 29, 32.

In the Dohr case this court reversed a directed verdict and judgment in favor of defendant, an anesthetist, despite the absence of expert testimony that 'what happened in [the] case amounted to negligence on the part of the anesthetist.' It appeared that the anesthetist made a routine examination of the patient's mouth prior to an operation for the purpose of finding out whether the patient had false teeth. She did not question the patient in this respect, however, because she thought the question would be insulting, and did not discover that the patient had a beidge containing two false teeth. The anesthetist inserted a tube into the patient's windpipe to supply the lungs with oxygen during the operation, using a laryngoscope for the purpose of properly placing the tube. During this process the two false teeth on the patient's bridgework broke off and lodged in the patient's right bronchus. There was expert testimony that it was possible to break teeth when using the laryngoscope 'even when the greatest skill and care were exercised', and no evidence that the anesthetist 'deviated from approved practice'. 'But,' said this court, 'the fact remains that the teeth were broken and lost despite the anesthetist's consciousness of such a contingency as evidenced by the 'routine' examination obviously intended to prevent the very thing that occurred. * * * The jury could have decided from common knowledge and experience, regardless of expert testimony, that the patient needlessly suffered from a condition the anesthetist herself sought to prevent. Montgomery v. Stary, Fla., 84 So.2d 34.'

In the cited case, Montgomery v. Stary, supra , this court affirmed a judgment for plaintiff in a malpractice suit involving an allegedly negligent application of an accepted medical treatment. Expert testimony in support of the plaintiff's theory was attacked by the defendant on the ground that it was not shown that the witnesses, who were Chicago physicians, had practiced in a community similar to the locality in which the defendant physician practiced. In holding that the rule contended for did not necessitate a reversal under the facts of the case this court said 'Proximate cause does not change with the locality. The jury could have found, as a matter of their own common knowledge and experience, and independent of expert testimony as to acceptable medical practice, that the fingers and thumb of a premature infant were needlessly burned off, and that this could not be considered acceptable medical practice in any community.' (Emphasis supplied.)

These two decisions are typical of the many malpractice cases involving a charge of negligence based on the careless or unskillful administering of an approved medical treatment--as distinguished from a charge based on an incorrect diagnosis or the adoption of the wrong method of treatment--in which the courts have upheld a judgment for plaintiff or required the submission of the cause to a jury, despite the absence of expert testimony that the acts complained of would amount to bad practice. Obviously, except in rare cases, neither the court nor the jury can or should be permitted to decide, arbitrarily, what is or is not a proper diagnosis or an acceptable method of treatment of a human ailment. Cf. Crovella v. Cochrane, Fla.App., 1958, 102 So.2d 307. But jurors of ordinary intelligence, sense and judgment are, in many cases, capable of reaching a conclusion, without the aid of expert testimony, in a malpractice case involving a charge of negligence in the application or administration of an approved medical treatment. For example, in the exercise of only common sense and ordinary judgment, a jury would have the right to conclude that it is negligence to permit a wound to heal superficially with nearly half a yard of gauze deeply imbedded in the flesh, Walker Hospital v. Pulley, 74 Ind.App. 659, 127 N.E. 559, 128 N.E. 933; to fail to sterilize surgical instruments before performing an operation, Lanier v. Trammell, 1944, 207 Ark. 372, 180 S.W.2d 818; to cut off part of a patient's tongue in removing adenoids, Evans v. Roberts, 172 Iowa 653, 154 N.W. 923; to perforate the urethra in performing an operation in which it was necessary to use care not to do so, Goodwin v. Hertzberg, 1952, 91 U.S. App.D.C. 385, 201 F.2d 204. Many other examples are cited in the annotation in 141 A.L.R. at pp. 12 et seq.; and see the cases cited in Montgomery v. Stary, supra, 84 So.2d at page 40.

Even in those cases in which some expert testimony may be required to show causation, the jurors may be authorized to infer from the circumstances that the defendant was negligent in the administration of an approved medical treatment, despite the absence of direct expert testimony to this effect and in the face of expert testimony to the contrary. See the several decisions of this court in Foster v. Thornoton, 113 Fla. 600, 152 So. 667, 119 Fla. 49, 160 So. 490, 493, and 125 Fla. 699, 170 So. 459. As is well stated in Goodwin v. Hergzberg, supra, 201 F.2d 204, 205:

'It is immaterial that no expert testified that appellee acted negligently. 'Malpractice is hard to prove. The physician has all of the advantage of position. * * * What therefore might be slight evidence when there is no such advantage, as in ordinary negligence cases, takes on greater weight in malpractice suits. * * * Generally speaking, direct and positive testimony to specific acts of negligence is not required. * * *' Christie v. Callahan, 75 U.S.App.D.C. 133, 135, 136, 147, 124 F.2d 825, 827, 828, 839.'

In Dohr v. Smith, supra, as has been noted, nor expert testified that the defendant anesthetist was negligent in the manner in which she undertook to carry out an approved medical procedure--the pre-operative examination of a patient to discover the presence or absence of false teeth. Yet, said this court, 'The jury could have decided from common knowledge and experience, regardless of expert testimony, that the patient needlessly suffered from a condition the anesthetist herself sought to prevent.' This language is appropriate to the facts of the instant case. In his deposition Dr. Humes...