Cedars Medical Center, Inc. v. Ravelo

• Decision Date: 16 June 1999
• Docket Number: No. 97-3197, No. 97-3071.
• Citation: 738 So.2d 362
• Parties: CEDARS MEDICAL CENTER, INC., Jose R. Gomez, and Jose R. Gomez, M.D., P.A., Appellants, v. Maria RAVELO, Appellee.
• Court: Florida District Court of Appeals

738 So.2d 362

CEDARS MEDICAL CENTER, INC., Jose R. Gomez, and Jose R. Gomez, M.D., P.A., Appellants, v. Maria RAVELO, Appellee.

Nos. 97-3197, 97-3071.

District Court of Appeal of Florida, Third District.

June 16, 1999.

Rehearing Denied September 8, 1999.

Greenberg Traurig Hoffman Lipoff Rosen & Quentel and Arthur J. England, Jr. and Brenda Kay Supple, Miami; Adams & Adams; Joseph R. Gomez, Miami, for appellants.

Roberto Villasante; St. Louis, Guerra & Auslander, and Charles Auslander, for appellee.

Before GERSTEN, GODERICH and SORONDO, JJ.

SORONDO, J.

Cedars Medical Center, Inc. and Dr. Jose R. Gomez and Jose R. Gomez, M.D., P.A. appeal to this court the final judgment for Maria Ravelo. Ravelo cross-appeals the final judgment.

Ravelo, a woman in her late 20's, sued Cedars and Dr. Gomez, alleging medical negligence surrounding exploratory surgery which included the removal of an abdominal mass and certain affected organs. Ravelo first saw Dr. Gomez in October of 1986, to obtain a second opinion about a procedure she had undergone at a clinic and about her subsequent failure to have a menstrual cycle. Dr. Gomez provided the same diagnosis as her first doctor, that Ravelo suffered from a form of scarring of the uterus called Asherman's Syndrome. Dr. Gomez recommended and administered an intra-uterine device (IUD) for therapeutic purposes.

Ravelo next visited Dr. Gomez in August of 1988, when he referred her to a fertility expert, Dr. Bernard Cantor, who confirmed she had a severe case of Asherman's Syndrome. Ravelo saw Dr. Gomez again in July of 1989, reporting severe pelvic pain. He diagnosed her problem as stemming from masses or lumps on both sides of her abdomen and ordered an ultrasound exam. The ultrasound, performed by another doctor, confirmed the presence of a mass on her right ovary. Dr. Gomez then recommended surgery. Dr. Gomez and Ravelo testified to conflicting versions of what Dr. Gomez said. Ravelo understood that she would be undergoing exploratory surgery to determine whether a cyst on her right ovary had to be removed and that the worst possible risk of the surgery was the removal of her right ovary. Dr. Gomez testified that he informed Ravelo that there existed the possibility for a hysterectomy.

Ravelo was subsequently admitted to Cedars in August 1989, where Dr. Gomez was an independent contractor with surgical privileges. At the time of admission, she signed a "consent and authorization" form which recited that Dr. Gomez was not an employee of Cedars. On the night Ravelo was admitted to Cedars, before going to Ravelo's room to prepare her for the next morning's surgery, a nurse retrieved from the hospital dispensary certain medications that had been ordered for Ravelo, including a sleeping pill. Once at Ravelo's room, the nurse prepped her, administered some of the medication that had been ordered, obtained Ravelo's signature on a form that authorized surgery and verified that she had given her physician consent for surgery.

On the morning of surgery, this same form was signed by Dr. Gomez who testified that he did not rely on Cedars to convey information necessary for Ravelo's informed consent. During the operation, Dr. Gomez performed the procedures listed on the various hospital forms, but in the course of the exploratory surgery discovered an unanticipated large amount of blood and adhesive tissue that required draining and separating. He immediately paged Dr. Elda Ferrer-Guerra for an intra-operative consultation, and the two agreed that it was necessary to remove both ovaries, the fallopian tubes and uterus. Upon subsequent analysis of the tissue removed from Ravelo, a pathologist determined that it showed severe and extensive endometriosis (the backwards flow of menstrual tissue out of the uterus, with growth that invades the outer lining of the uterus and other abdominal organs). Experts at trial testified that Ravelo's endometriosis had affected both ovaries, both fallopian tubes, and the surface of the uterus.

Ravelo sued Cedars and Dr. Gomez, alleging that the organs should not have been removed. The amended complaint filed January 23, 1992 alleged one count of negligence against Dr. Gomez and that Dr. Gomez failed to obtain from Ravelo informed consent to all the procedures performed while in surgery. Regarding Cedars, Ravelo alleged 1) that Dr. Gomez was acting as an agent of Cedars when he operated on her, 2) that Cedars was negligent in discharging its risk management obligations by failing to advise her about Dr. Gomez's alleged propensity for unnecessary medical procedures, and 3) that Cedars breached a duty to her by encouraging its physicians to perform procedures not consented to or about which patients were not fully informed.

Dr. Gomez denied all allegations of negligence and asserted that Ravelo had received the proper treatment and had given full consent to the procedures. Cedars denied each of Ravelo's claims, asserting that Dr. Gomez was not an employee of the hospital and that it had absolute immunity both as to any actions taken by Dr. Gomez and as to any failure on his part to obtain informed consent from Ravelo prior to her operation.

A jury trial followed and at the close of Ravelo's case, Cedars moved for a directed verdict on her three theories of 1) apparent agency with Dr. Gomez, 2) negligent retention or credentialing of Dr. Gomez, and 3) failure to obtain informed consent. The trial court allowed the agency and informed consent theories to proceed, but granted a directed verdict on negligent retention and credentialing. Cedars presented its case, then renewed its motion for a directed verdict on Ravelo's remaining claims. The trial court inquired of Ravelo's counsel on what theory of apparent agency he was traveling other than failure to obtain informed consent and gave him some time to give an answer.

During the jury charge conference, Ravelo's counsel proposed instructions on Cedars' liability for the two remaining issues but stated that he was unable to provide any additional argument for Cedars' liability for the acts of Dr. Gomez. Ravelo's proposed instruction for Cedars' liability based on agency was denied. Ravelo's counsel then requested from the court a ruling on the theory of Cedars' liability based on apparent agency. This theory and corresponding instruction were also rejected by the trial court.

Ravelo's counsel then proposed jury instruction # 12, "Voluntary Undertaking of Duty" and argued in relation to the consent form that if Cedars undertook the duty, it was under an obligation to do it with reasonable care. Cedars' counsel objected, but the court approved the proposed instruction. The next day at the continuation of the jury instruction conference, Cedars' counsel informed the court that the Florida Medical Consent Law did not extend the duty to obtain informed consent to a hospital or to a nurse. However, the court elected to instruct the jury that Cedars could be found liable on the theory of informed consent or assumption of a duty.

After deliberations, the jury returned verdicts against Dr. Gomez and Cedars jointly for $2 million based on negligence in obtaining her informed consent to remove all of her reproductive organs. The jury found that Dr. Gomez did not fall below the standard of care in his treatment of Ravelo. The court entered judgment on the verdicts. Cedars and Dr. Gomez moved for judgment notwithstanding the verdict and for a new trial, which were denied. Cedars and Dr. Gomez appealed, and this court consolidated the two appeals. Ravelo filed a cross-appeal. We proceed to analyze each party's appeal individually.

DR. GOMEZ

Dr. Gomez argues that Ravelo's counsel's statements during closing argument constituted fundamental error and that reversal of the final judgment and a new trial are in order. We disagree. We first note that no objection was made to the comments complained of on appeal. The law is clear that a contemporaneous objection to an improper comment in summation is necessary in order to preserve the claim for appellate review. See Street v. State, 636 So.2d 1297 (Fla.1994)

; Eichelkraut v. Kash N' Karry Food Stores Inc., 644 So.2d 90 (Fla. 2d DCA 1994); Wasden v. Seaboard Coast Line R.R. Co., 474 So.2d 825 (Fla. 2d DCA 1985). The exception to this general rule is where the comment is so egregious that it constitutes fundamental error. See Sears Roebuck & Co. v. Jackson, 433 So.2d 1319 (Fla. 3d DCA 1983). Fundamental error in closing argument occurs when the "prejudicial conduct in its collective import is so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury." Silva v. Nightingale, 619 So.2d 4, 5 (Fla. 5th DCA 1993)(quoting Tyus v. Apalachicola Northern R.R. Co., 130 So.2d 580, 587 (Fla.1961)). Having reviewed the objectionable comments in context, as well as the evidence presented at trial, we cannot conclude that the comments at issue constituted fundamental error. Accordingly, the final judgment against Dr. Gomez is affirmed.

CEDARS MEDICAL CENTER

Cedars argues that as a matter of law, it had no duty to obtain Ravelo's informed consent to surgical procedures performed by Dr. Gomez. We agree. The record reflects that Dr. Gomez was not an employee of Cedars; he was an independent contractor who had staff privileges at Cedars. It is well-established that a hospital is not liable for the acts of a physician who is an independent contractor. See Public Health Trust of Dade County v. Valcin, 507 So.2d 596, 601 (Fla.1987)

; Snead v. Le Jeune Road Hosp., Inc., 196 So.2d 179 (Fla. 3d DCA 1967).¹

Moreover, Florida law confines liability for a failure to obtain informed consent to medical practitioners. Florida's Medical Consent Law, first enacted in 1975, lists the persons against whom there can be recovery for the failure to secure informed consent for a medical procedure. The current...