Cook v. Lichtblau

• Decision Date: 28 May 1965
• Docket Number: No. 4515,4515
• Citation: 176 So.2d 523
• Parties: David COOK, a minor, by his mother and next friend, Alean Cook, and Alean Cook, individually, Appellants, v. Philip O. LICHTBLAU and Thomas E. Daly, Appellees.
• Court: Florida District Court of Appeals

Page 523

176 So.2d 523

David COOK, a minor, by his mother and next friend, Alean Cook, and Alean Cook, individually, Appellants, v. Philip O. LICHTBLAU and Thomas E. Daly, Appellees.

No. 4515.

District Court of Appeal of Florida, Second District.

May 28, 1965.

Rehearing Denied July 20, 1965.

Rupert Jasen Smith, Fort Pierce, for appellants. appellants.

Fowler, White, Gillen, Humkey & Trenam, Miami, for appellees.

SMITH, Chief Judge.

The plaintiffs appeal an order dismissing with prejudice their action seeking damages for alleged medical malpractice. We previously reversed a summary final judgment for the defendant-doctors because the affidavit of a Miami physician raised a genuine issue of material fact on the issue of negligence. Cook v. Lichtblau, Fla.App.1962, 144 So.2d 312. Although subpoenaed by the plaintiffs, the Miami physician did not appear at the trial and the court sustained objections to the introduction of his deposition in evidence. After the plaintiffs had rested and the court had indicated an intention to grant the defendants' motion for a directed verdict, the plaintiffs requested leave 'to take a nonsuit without prejudice.' The court reserved ruling on this motion, dismissed the jury and subsequently dismissed the cause with prejudice. On this appeal plaintiffs contend that the court erred in excluding the deposition from evidence, in denying the motion 'to take a nonsuit without prejudice,' and in indicating an intention of granting a directed verdict. We affirm the court's ruling excluding the deposition from evidence but reverse for error in treating the plaintiffs' motion for nonsuit as constituting a dismissal with prejudice.

The minor plaintiff sustained an unusual type of fracture dislocation of the arm on Sunday, February 7, 1960. His family physician unsuccessfully attempted to treat it under general anesthesia administered in a local hospital at Ft. Pierce. He then referred the plaintiff by telephone to the defendant, Dr. Lichtiblau, an orthopedic surgeon in West Palm Beach. Dr. Lichtblau engaged the services of the defendant, Dr. Daly, an anesthetist, and arranged to meet the plaintiff and his mother at St. Mary's Hospital in West Palm Beach. When the plaintiffs arrived, various tests were administered and a history was taken which indicated that the minor plaintiff had not eaten since about noon. Dr. Lichtblau found that an emergency existed because the plaintiff was in danger of losing his arm due to improverished circulation. Dr. Daly considered using a procedure involving local anesthesia but chose general anesthesia instead because the plaintiff was too anxious and apprehensive to be cooperative while conscious.

A closed reduction was first attempted without success apparently under general anesthesia which began at about 8:40 P.M. Open reduction involving surgery was then undertaken and was completed about 10:00 P.M. The surgery itself was uneventful but the plaintiff vomited profusely while recovering from the effects of the anesthesia. Despite certain emergency procedures employed by Dr. Daly, including mouth to mouth resuscitation, aspiration of vomit occurred necessitating a call to a specialist to perform a bronchoscopy. This entailed the administration of additional anesthesia and the plaintiff was not removed to his hospital room until approximately midnight. The operation on the plaintiff's arm proved to be entirely successful but afterwards it was found that he had sustained serious brain damage resulting in permanent disability.

As disclosed in his deposition, Dr. Lichtblau initially had the impression that the plaintiff was showing some effects of anoxia or lack of oxygen since there were definite cerebral changes. At first he thought that the plaintiff might have had a period of anoxia in connection with the aspiration of vomit. However, after further study Dr. Lichtblau concluded that a fat embolism, which, he stated, is unpredictable and cannot be treated, was a more likely cause. He did so, among other reasons, because, in his words, 'it was a very short period if [the plaintiff] had true anoxia or true apnea, it was a short period.'

In opposing the defendants' motion for summary judgment the plaintiffs submitted the affidavit of a Miami physician which is printed in full in our prior opinion reported at 144 So.2d 312. This alleged in substance a failure to follow approved medical practices, chiefly by administering anesthesia without treating an allegedly underlying condition of 'acidosis.' Following our reversal the defendants took this physician's deposition pursuant to a notice which stated that it was being taken 'for the purpose of discovery under the applicable statutes and Rules of Court.' The plaintiffs gave no prior notice that they would seek to use his deposition as evidence and the defendants' attorney limited his questioning chiefly to direct examination.

Thereafter, the plaintiff was examined by a specialist in neurological surgery from Ft. Lauderdale, who had been appointed by the court on motion of the defendants. A report of this doctor's neurological evaluation indicated that anoxia to the brain was a more likely cause of the plaintiff's injuries than fat embolism, that it takes only a few minutes of anoxia to produce such injuries, and that this anoxia 'may be from the heart stopping, as we often times see in cardiac arrests, or from obstruction of the respiratory tree or even from nitrous oxide anesthesia as described by C. B. Courville in Medicine, Volume XV, page 129, 1936.'

The plaintiffs first received a copy of this neurological evaluation on Thursday, July 11, 1963, four days prior to the trial scheduled oxide anesthesia as described by C. B. Courville Upon learning that it would be impossible to subpoena this physician because he was in Mexico, the plaintiffs promptly moved for a continuance. At a hearing held on Friday, July 12th, the parties stipulated that this physician's report could be read in evidence upon being advised by the court that it would be 'fair and reasonable' to proceed with the trial as scheduled upon this condition. Late Friday afternoon, following this hearing, the plaintiffs' attorney was advised that the Miami physician, who had been served with a subpoena that day, 'was not supposed to come.' On Saturday he received an affidavit of a Coral Gables specialist in cardiovascular diseases which stated that the Miami physician was his patient and that it would be detrimental for him to appear and testify in court because of certain described ailments, none of which were alleged to be of recent origin.

The plaintiffs' attorneys proceeded with the trial on Monday under the impression that the Miami physician's deposition would be admissible in evidence under the following language of Florida R.C.P. 1.21(d), 30 F.S.A.:

'At the trial * * * any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions:

* * *

* * *

'(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds * * * 3, that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or 4, that the party offering the deposition has been unable to procure the attendance of the witness * * *.' ¹

In sustaining the defendants' objections to this deposition the trial judge stated that, if the plaintiffs' attorneys had notified him of the affidavit before the trial began, he could have sought to arrange for the doctor's appearance or granted a continuance; further the court stated that he was not personally acquainted with the attorney who procured the affidavit and that the Coral Gables affiant was not present for cross examination. Upon request the court indicated a willingness to permit the plaintiffs to take another deposition of the Miami physician that evening, but he declined to direct the defendants' attorneys to participate in such a proceeding.

The defendants contend that a deposition taken under Florida R.C.P. 1.21 for the express purpose of discovery only is not subject to use as evidence under any circumstances. We do not reach or pass upon this contention except to note that such authorities as we have found seem to reach a contrary conclusion on this point. ² However, in Florida another consideration is relevant, namely, the availability of a special procedure or method for introducing the testimony of an expert by deposition. Section 90.23, Fla.Stats., F.S.A., recently adopted by amendment as Florida R.C.P. 1.32. A party seeking to offer an expert's testimony by deposition under this procedure must give prior within notice of such intention to his opponent, who may then seek an order disallowing the taking on the ground that the personal appearance of the witness is necessary to insure a fair and impartial trial. ³ Where, as here, a party knows in advance of trial that his expert will not be available, he should make timely application to invoke this special procedure instead of relying upon a deposition taken by his adversary solely for the purpose of discovery. To hold otherwise would result in depriving his opponent of the benefit of cross examination even though a procedure and opportunity still existed whereby that valuable right could be preserved. For this and other reasons given by the trial judge we find no error in his ruling excluding the Miami physician's deposition from evidence. ⁴

Without the benefit of the Miami physician's testimony the plaintiffs failed to prove a prima facie case of malpractice based upon a failure to follow approved medical practices. ⁵ However, the record did not establish that the plaintiffs could not make out such a case by testimony in admissible form of the Miami physician or another...