Bondu v. Gurvich, Nos. 81-968

CourtCourt of Appeal of Florida (US)
Writing for the CourtBefore SCHWARTZ; DANIEL S. PEARSON; PER CURIAM; DANIEL S. PEARSON, J. and OWEN, WILLIAM C., Jr.; SCHWARTZ
Citation10 Fla. L. Weekly 1991,473 So.2d 1307
Decision Date05 June 1984
Docket Number81-969,Nos. 81-968
Parties10 Fla. L. Weekly 1991 Mayme BONDU, as Personal Representative of the Estate of Dave M. Bondu, Deceased, Appellant, v. Ruben GURVICH, M.D., Steiner & Munach, M.D., P.A., Cedars of Lebanon Hospital Care Center, Inc., a Florida corporation, and Florida Patients Compensation Fund, Appellees. Mayme BONDU, as Personal Representative of the Estate of Dave M. Bondu, Deceased, Appellant, v. CEDARS OF LEBANON HOSPITAL CARE CENTER, INC., a Florida corporation, and The Florida Patients Compensation Fund, Appellees.

Page 1307

473 So.2d 1307
10 Fla. L. Weekly 1991
Mayme BONDU, as Personal Representative of the Estate of Dave M. Bondu, Deceased, Appellant,
v.
Ruben GURVICH, M.D., Steiner & Munach, M.D., P.A., Cedars of Lebanon Hospital Care Center, Inc., a Florida corporation, and Florida Patients Compensation Fund, Appellees.
Mayme BONDU, as Personal Representative of the Estate of Dave M. Bondu, Deceased, Appellant,
v.
CEDARS OF LEBANON HOSPITAL CARE CENTER, INC., a Florida corporation, and The Florida Patients Compensation Fund, Appellees.
Nos. 81-968, 81-969.
District Court of Appeal of Florida,
Third District.
June 5, 1984.
Rehearing Denied Aug. 20, 1985.

Page 1309

Horton, Perse & Ginsberg and Arnold R. Ginsberg; Colson & Hicks, Miami, for appellant.

Adams, Ward, Hunter, Angones & Adams and Robert C. Ward, Miami, for appellees.

Before SCHWARTZ, C.J., * DANIEL S. PEARSON, J., and WILLIAM C. OWEN, Jr., Associate Judge.

DANIEL S. PEARSON, Judge.

In 1979, Dave Bondu was admitted to Cedars of Lebanon Hospital for study and evaluation of his coronary arteries. Several days later, after a determination that a triple bypass operation was required, Mr. Bondu went into surgery. At some point during the administration of anesthesia, Mr. Bondu suffered a cardiac arrest and despite a concerted and indisputably non-negligent effort by all present to save his life, died.

In 1980, Mayme Bondu, Dave's wife and the personal representative of his estate, sued the hospital, the Florida Patients' Compensation Fund (the Fund), and the anesthesiologists. In essence, her multicount complaint charged that the anesthesiologists' negligence caused the cardiac arrest; that the hospital was negligent in its selection and supervision of these anesthesiologists; and, of particular pertinence to this appeal, in Count VIII, that the hospital was negligent per se by failing, contrary to Section 395.202, Florida Statutes (1979), to provide Mrs. Bondu with requested medical records, thus "[frustrating] the plaintiff's ability to pursue certain proof which may be necessary to establish her case"; and in Count IX, that the hospital intentionally interfered with Mrs. Bondu's right of action

Page 1310

in that it "purposely and intentionally lost and/or destroyed," among others, the anesthesiology records, again "[frustrating] the plaintiff's ability to pursue certain proof which may be necessary to establish her case."

At an early stage in the litigation, the trial court dismissed with prejudice Counts VIII and IX on the ground that these counts failed to state a cause of action. Thereafter, discovery proceedings disclosed that anesthesiology records had been made, but were nowhere to be found. Predictably, there being no record of what occurred, and, it follows, no expert testimony to establish medical malpractice, a summary judgment was entered in favor of all defendants on the remaining counts of the complaint.

Mrs. Bondu then unsuccessfully moved for a rehearing "and/or" for leave to amend her complaint to add a count charging the hospital with the negligent loss of the records causing her to lose "a medical negligence lawsuit when the plaintiff could not provide expert witnesses." At or about the same time Mrs. Bondu sought the foregoing relief, she filed a separate action against the hospital and the Fund, alleging that which she alleged in the additional count which she had sought leave to add to her earlier lawsuit. Mrs. Bondu's new action was met by the hospital's motion for judgment on the pleadings asserting that the trial court's dismissal with prejudice of Counts VIII and IX in the first suit was res judicata as to the new action. The motion for judgment on the pleadings was granted.

The present appeals, consolidated here, assail only the order denying Bondu's motion for leave to amend (Case No. 81-968) and the judgment on the pleadings (Case No. 81-969). 1 The relief sought by Bondu in these appeals is identical. In each she seeks the right to maintain an action against the hospital for its negligent loss of records which caused her to lose her medical malpractice action. Whether this action is maintained in the original or subsequent lawsuit is of no moment here. Therefore, although we conclude that because Bondu's proffered amendment to her original action (a) sets forth a cause of action (b) which is different from the counts in her earlier action, the order denying her leave to amend must be affirmed, 2 we need only note this affirmance without

Page 1311

extended discussion, since, for the very same reason that Bondu's subsequent suit (a) sets forth a cause of action (b) which is different from the dismissed counts of her earlier action, the judgment on the pleadings must be reversed.

I.

In support of its motion for judgment on the pleadings, the hospital argued below, and argues here, that the dismissal of Counts VIII and IX of Bondu's initial complaint barred her new complaint on grounds of res judicata. It is clear, however, that a suit will be barred by res judicata (assuming that the other identity requirements of the doctrine are met) only if the cause of action previously adjudicated is identical to the cause of action later brought. See United States Gypsum Co. v. Columbia Casualty Co., 124 Fla. 633, 169 So. 532 (1936); Husky Industries, Inc. v. Griffith, 422 So.2d 996 (Fla. 5th DCA 1982); Stevens v. Len-Hal Realty, Inc., 403 So.2d 507 (Fla. 4th DCA 1981). The dismissal of Counts VIII and IX adjudicated, at most, that no cause of action lay for the hospital's failure to produce records where the alleged failure rendered the plaintiff unable to pursue certain proof which may be necessary to prove her related medical malpractice claims. The recitation in the dismissal order that "said Counts fail to state a cause of action" is presumably an adjudication that the inability to pursue certain proof which may be necessary to prove other claims is not an injury which the law recognizes, that is, that the uncertainty as to the fact of damage precludes recovery. But Mrs. Bondu's new complaint was filed after the entry of the summary judgment against her on her medical malpractice claims, when the fact of damage became certain and her cause of action ripened. The intervention of this summary judgment between the dismissal of Counts VIII and IX of the original action and the filing of the new action furnished a new basis for Mrs. Bondu's claim and makes the doctrine of res judicata inapplicable to her new action. 3 As has been stated:

"Case law abounds to the proposition that the rule of res judicata extends only to the facts and conditions as they existed at the time the judgment was rendered, or more correctly speaking, at the time the issues in the first action were made, and to the legal rights and relations of the parties as fixed by the facts determined by that judgment. When other facts or conditions intervene before the second suit, furnishing a new basis for the claims and defenses of the respective parties, the issues are no longer the same and the former judgment cannot be pleaded in bar of the second action.... Thus the applicability of the doctrine in each case turns on the particular facts alleged in each action and the...

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89 practice notes
  • Willard v. Caterpillar, Inc., No. F019296
    • United States
    • California Court of Appeals
    • November 30, 1995
    ...for spoliation of evidence. (Hazen v. Municipality of Anchorage (Alaska 1986) 718 P.2d 456, 463-464; Bondu v. Gurvich (Fla.App.1984) 473 So.2d 1307, 1312; Rodgers v. St. Mary's Hosp. of Decatur (1992) 149 Ill.2d 302, 173 Ill.Dec. 642, 646, 597 N.E.2d 616, 620; Foster v. Lawrence Memorial Ho......
  • Superior Boiler Works Inc. v. Kimball, No. 103,367.
    • United States
    • United States State Supreme Court of Kansas
    • August 12, 2011
    ...804–05, 626 P.2d 214 (1981). The Koplin court noted that the same analogy had been drawn by the dissenting judge in Bondu v. Gurvich, 473 So.2d 1307 (Fla.Dist.App.1984), disapproved by Martino v. Wal–Mart Stores, Inc., 908 So.2d 342 (Fla.2005), in which the Florida Court of Appeals allowed ......
  • Trevino v. Ortega, No. 97-0280
    • United States
    • Supreme Court of Texas
    • July 3, 1998
    ...506 (1985) (negligent); Smith v. Superior Court, 151 Cal.App.3d 491, 198 Cal.Rptr. 829, 832-33 (1984) (intentional); Bondu v. Gurvich, 473 So.2d 1307, 1312-13 (Fla.Dist.Ct.App.1984) (negligent); Callahan v. Stanley Works, 306 N.J.Super. 488, 703 A.2d 1014, 1017-19 (1997) (negligent); Colema......
  • Hirsch v. General Motors Corp.
    • United States
    • Superior Court of New Jersey
    • May 4, 1993
    ...pertinent to the action is destroyed, thereby interfering with the action's proper administration and disposition. See Bondu v. Gurvich, 473 So.2d 1307, 1312 (Fla.Dist.Ct.App.1984); see also Nancy Melgaard, Note, Spoliation of Evidence--An Independent Tort?, 67 N.D.L.Rev. 501 [628 A.2d 1114......
  • Request a trial to view additional results
89 cases
  • Willard v. Caterpillar, Inc., No. F019296
    • United States
    • California Court of Appeals
    • November 30, 1995
    ...for spoliation of evidence. (Hazen v. Municipality of Anchorage (Alaska 1986) 718 P.2d 456, 463-464; Bondu v. Gurvich (Fla.App.1984) 473 So.2d 1307, 1312; Rodgers v. St. Mary's Hosp. of Decatur (1992) 149 Ill.2d 302, 173 Ill.Dec. 642, 646, 597 N.E.2d 616, 620; Foster v. Lawrence Memorial Ho......
  • Superior Boiler Works Inc. v. Kimball, No. 103,367.
    • United States
    • United States State Supreme Court of Kansas
    • August 12, 2011
    ...804–05, 626 P.2d 214 (1981). The Koplin court noted that the same analogy had been drawn by the dissenting judge in Bondu v. Gurvich, 473 So.2d 1307 (Fla.Dist.App.1984), disapproved by Martino v. Wal–Mart Stores, Inc., 908 So.2d 342 (Fla.2005), in which the Florida Court of Appeals allowed ......
  • Trevino v. Ortega, No. 97-0280
    • United States
    • Supreme Court of Texas
    • July 3, 1998
    ...506 (1985) (negligent); Smith v. Superior Court, 151 Cal.App.3d 491, 198 Cal.Rptr. 829, 832-33 (1984) (intentional); Bondu v. Gurvich, 473 So.2d 1307, 1312-13 (Fla.Dist.Ct.App.1984) (negligent); Callahan v. Stanley Works, 306 N.J.Super. 488, 703 A.2d 1014, 1017-19 (1997) (negligent); Colema......
  • Hirsch v. General Motors Corp.
    • United States
    • Superior Court of New Jersey
    • May 4, 1993
    ...pertinent to the action is destroyed, thereby interfering with the action's proper administration and disposition. See Bondu v. Gurvich, 473 So.2d 1307, 1312 (Fla.Dist.Ct.App.1984); see also Nancy Melgaard, Note, Spoliation of Evidence--An Independent Tort?, 67 N.D.L.Rev. 501 [628 A.2d 1114......
  • Request a trial to view additional results

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