Cedars of Lebanon Hosp. Corp. v. Silva
| Decision Date | 10 September 1985 |
| Docket Number | 80-2027 and 81-732,Nos. 80-1996,81-675,s. 80-1996 |
| Citation | 10 Fla. L. Weekly 2102,476 So.2d 696 |
| Parties | 10 Fla. L. Weekly 2102 CEDARS OF LEBANON HOSPITAL CORPORATION, et al., Appellants, v. Orlando SILVA, M.D., et al., Appellees. Ruben GURVICH, M.D., et al., Appellants, v. Orlando SILVA, M.D., et al., Appellees. Orlando SILVA, M.D., as personal representative of the Estate of Maria Teresa Silva, deceased, Appellant, v. CEDARS OF LEBANON HOSPITAL CORPORATION, a Florida corporation, et al., Appellees. |
| Court | Florida District Court of Appeals |
Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble; Perkins, Vickers & Collins, Tallahassee; Lanza, Sevier & Womack, Coral Gables, for appellants/cross-appellees Cedars of Lebanon Hosp. Corp., Ambassador Ins. Co., and Florida Patients' Compensation Fund.
Spence, Payne, Masington & Grossman; Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel D. Eaton, Miami, for appellee/appellant Orlando Silva, M.D.
Preddy, Kutner & Hardy and G. William Bissett, Miami, for appellants/appellees Ruben Gurvich, M.D. and Steiner and Munach, P.A.
Thornton & Herndon and John W. Thornton and Jane E. Thornton, Miami, for appellee/cross-appellant Raquel Cruz, M.D.
Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
This case began when Orlando Silva, as personal representative of the estate of his deceased wife, Maria Teresa Silva, and on behalf of their four minor children, 1 brought an action against multiple defendants claiming that medical malpractice committed by the defendant doctors and hospital personnel during surgery caused Mrs. Silva to suffer irreversible brain damage eventuating in her death. More specifically, Silva claimed that Dr. Ruben Gurvich, the attending anesthesiologist, while acting in the course and scope of his authority as an agent and employee of Steiner and Munach, P.A., was negligent in his administration of anesthetic treatment and care; that Dr. Raquel Cruz, the surgeon, was negligent in her failure to take appropriate and expeditious remedial action; and that Cedars of Lebanon Hospital (and its liability insurers, Ambassador Insurance Company and Florida Patients' Compensation Fund) was itself liable for the negligent action and inaction of its operating room personnel, and was, as well, vicariously liable for Dr. Gurvich's negligence. 2
After more than three weeks at trial, the jury returned a special interrogatory verdict in which it found that Dr. Gurvich was the agent of Cedars 3; that the legal cause of Mrs. Silva's death was negligence on the part of Cedars and Dr. Gurvich; that no negligence on the part of the surgeon, Dr. Cruz, or on the part of the plaintiff, Silva, contributed to Mrs. Silva's death; and that Dr. Gurvich's and Cedars' negligence contributed to Mrs. Silva's death in the amount of ninety per cent and ten per cent, respectively.
The jury went on to assess the damages. Because certain events which may have affected the jury's damage awards form the central issue on appeal, we here set forth in haec verba the portion of the verdict relating to damages:
Several days after the verdict was rendered, Silva filed a motion to interview the jurors pursuant to Florida Rule of Civil Procedure 1.431(g) and, simultaneously, a motion to interview the bailiff and a motion for new trial on damages only. The motions to interview were supported by Silva's own affidavit and those of his oldest son, his trial counsel, and others connected with the law firm representing him. The motions and affidavits recited that some of the jurors had publicly stated shortly after the trial that they had intended to award larger amounts of future damages for the minor children, that they were confused by the judge's instructions on future damages, and, most significantly, that they had requested the bailiff to let them ask the judge for clarification of the instructions, but that their request had been refused. Over the defendants' objections, the trial court granted the motions to interview, and two hearings in chambers ensued, at which, with all counsel present, five of the six jurors and the bailiff were questioned. Thereafter, based on what this questioning revealed, the trial court entered its order granting Silva's request for a new trial on damages only. The post-trial motions of Dr. Gurvich and Cedars were denied, and they appealed. 4
We turn now to the propriety of the interview of the jurors, a central component of the trial court's decision to limit the new trial to the issue of damages. According to the affidavits in support of the motions to interview the jurors and the bailiff, these motions were prompted by the following events. After the return of the verdict, Stuart Grossman, one of Silva's attorneys, left the courthouse and saw one of the jurors speaking to a reporter from the Miami Herald. Mr. Grossman walked over and heard the juror tell the reporter that the jurors were confused about the verdict; they thought the money awarded was a monthly amount to be multiplied, and, despite an earlier admonition to them by the trial judge that he would not be their "pen pal," they had tried to speak to the judge about their confusion, but the bailiff refused to let them speak to the judge. Mr. J.B. Spence, another of Silva's attorneys, and Dr. Silva came over and heard this too. A few minutes later, three other jurors came back from their cars and said they needed to see the judge, as they had made a mistake. This all occurred late on a Friday, and the judge had already left the courthouse. Mr. Spence told the jurors to try calling the judge Saturday or Monday. An article concerning the jurors' confusion appeared in the Miami Herald, and an interview of one of the jurors by a television news reporter appeared on television.
The trial judge agreed to conduct interviews, to be limited, in his words, to "the isolated issue as to whether or not they [the jurors] were confused and whether or not they made a request to the bailiff to convey a message to the Judge, counsel, or whoever, if they in fact wanted to convey a message." At the interviews, five of the six jurors and the bailiff gave their versions of what occurred. The foreperson stated that at the end of deliberations, when she knocked on the door to tell the bailiff that they were ready to return the verdict, one of the jurors told the bailiff that the jury was not sure about the money verdict; two other jurors agreed with this juror and said they would like to clear it up, but the bailiff told them they "could not talk to the Judge at this point." According to the foreperson, the verdict form was already filled out and signed at the time of this conversation with the bailiff. The foreperson also said that when the verdict for the first listed child, Orlando, Jr., was read, she overheard one juror say something like "that sure doesn't seem like much."
Another juror testified that some jurors asked the bailiff about the damages and told him that they were confused, and the bailiff told them not to worry about it. A third juror stated that all the jurors were confused about how the money was to be computed, and they asked the bailiff if they could speak to the judge, and the bailiff told them they could not. This juror said that the verdict form had not been signed and that they had not yet reached a verdict when they spoke to the bailiff. A fourth juror testified that after the verdict form had been filled out, they asked the bailiff if they could talk to the judge about the money part "on the sheet," and the bailiff told them not to worry about it. This juror claimed that the jurors had not asked to speak to the judge earlier "because we understood we were not supposed to talk to him while we were in deliberation ...." She said that she had come to that understanding because She also said the only problem they had was with the children's future damages, not with Dr. Silva's damages, past or future.
The fifth juror testified that the jurors told the bailiff they had a problem, to which the bailiff responded that the judge was in his office and that the jurors should worry only about the guilty or not guilty portion of the verdict. She stated the verdict form had not been signed at the time of this communication. She added that she was afraid to say anything after the jurors had...
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...supported liability, and inadequacy of the verdict was probably due to erroneous jury instruction); Cedars of Lebanon Hosp. Corp. v. Silva, 476 So. 2d 696 (Fla. 3d DCA 1985) (affirming limitation of new trial to damages where inadequate award was apparently generated by trial court's instru......
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