Cato v. West Florida Hosp., Inc., AX-375

• Decision Date: 14 June 1985
• Docket Number: No. AX-375,AX-375
• Citation: 10 Fla. L. Weekly 1490,471 So.2d 598
• Parties: 10 Fla. L. Weekly 1490 Doreen CATO, as personal representative of the Estate of John Cato, Appellant, v. WEST FLORIDA HOSPITAL, INC.; Medical Center Clinic, P.A.; John E. Wimberly, M.D.; and William C. Woolverton, M.D., Appellee.
• Court: Florida District Court of Appeals

Page 598

471 So.2d 598

10 Fla. L. Weekly 1490

Doreen CATO, as personal representative of the Estate of John Cato, Appellant, v. WEST FLORIDA HOSPITAL, INC.; Medical Center Clinic, P.A.; John E. Wimberly, M.D.; and William C. Woolverton, M.D., Appellee.

No. AX-375.

District Court of Appeal of Florida,

First District.

June 14, 1985.

James F. McKenzie of McKenzie & Associates, P.A., Raymond C. Clay, Jr., Pensacola, for appellant.

Edward P. Nickinson, III, and Frank C. Bozeman of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Pensacola, for appellee West Florida Hosp.

Joe J. Harrell of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellees Medical Center, Wimberly and Woolverton.

MILLS, Judge.

Cato appeals from a jury verdict in favor of appellees in this medical malpractice action. We affirm.

Cato's decedent initially underwent surgery in July 1978 for the implantation of a pacemaker in his right chest. The incision failed to heal and additional surgery was performed in August 1978 in an attempt to clean the wound and facilitate healing. The procedure was unsuccessful and, in September 1978, the pacemaker was removed from the right chest and a new unit was placed in the left chest. It was after this third procedure that an extra surgical sponge was discovered in the right chest in the course of a routine post-operative "sponge count."

Cato, who at all times material hereto was suffering from a heart condition requiring anti-coagulant medication and from diabetes, filed suit against the doctors and medical facilities involved alleging that the negligent act of leaving the sponge in the right chest substantially contributed to the healing difficulties, causing additional pain and hospitalization. On the day of trial, appellees conceded negligence, leaving causation as the only issue for trial.

The expert testimony was conflicting on the issue of the sponge's contribution to Cato's difficulties in healing. The most favorable to Cato was presented by his expert, who testified that the sponge substantially contributed along with other medical conditions to his healing difficulties, within a reasonable medical probability. Cato's attempt to introduce evidence of problems suffered after the September surgery was denied because it was not foreseeable that the left chest would fail to heal. Appellees' motion for directed verdict, made at the close of the evidence, was taken under advisement.

The trial judge initially instructed the jury on legal cause and on contributing and concurring cause as set forth in Civil Standard Jury Instruction 5.1a, b and c. The jury returned twice for reinstruction; neither time was the full causation charge given again, although Cato did not object until after the second reinstruction. His request for the complete charge was denied. The jury returned soon after the second reinstruction with a verdict for appellees on the causation issue.

Based on the favorable jury verdict, appellees were awarded attorney's fees pursuant to Section 768.56, Florida Statutes (1980 Supp.) as the prevailing parties. The award was made without objection from Cato.

Cato moved for new trial, which was denied. At the hearing, appellees requested a ruling on their motion for directed verdict. The court "provisionally" granted the motion.

Cato's contention that the trial court erred in refusing to give the full causation charge on reinstruction is without merit. Cato concedes that the complete instruction was given initially. An error such as alleged here is not a ground for reversal if the charges as a whole adequately present the law on the issues. Martin v. Tindell, 98 So.2d 473 (Fla.1957). The failure to give a requested charge whose substance is covered in other charges is not reversible error. Reeder v. Edward M. Chadbourne, Inc., 338 So.2d 271, 275 (Fla. 1st DCA 1976); see also Griffin v. State, (Fla.1985) [10 FLW 264, 265 (filed 5/2/85) ] (since information omitted from instruction was obvious from instructions that were given, the instruction was not essential). Because the complete charge was given initially, and the charges on reinstruction do not appear to have been "calculated to confuse, mislead or prejudice the jury," Martin, we affirm on this issue.

We also affirm the trial court's action in refusing to permit evidence of any damages suffered because of problems with the left chest operative site. We agree that those difficulties did not "naturally, proximately and reasonably follow or result" from the original act of negligence conceded by appellees, Briggs v. Brown, 55 Fla. 417, 46 So. 325 (1908).

Cato contends the trial court erred in awarding attorney's fees to appellees as the prevailing parties, pursuant to Section 768.56(1), Florida Statutes (1980 supp.) ¹ She argues that, because of appellees' concession of negligence prior to trial, she was the prevailing party, despite receiving no damages. We cannot agree. To prove a cause of action in negligence, a plaintiff must show that the defendant owed him a duty, a breach of that duty, and damages proximately caused by the breach. Without the presence of any one of the elements, the entire cause of action fails. Here, Cato prevailed on the first two elements by virtue of the appellees' concession. However, appellees did not concede that their negligence caused Cato's injury, and the jury concluded that it did not. Therefore, Cato did not prove the required elements of his cause of action and appellees were the "prevailing parties" within the statute.

Cato next argues that the statute is unconstitutionally applied to him because his cause of action accrued prior to the statute's effective date. This court has held such an application unconstitutional, Parrish...