Dandashi v. Fine
| Decision Date | 28 April 1981 |
| Docket Number | No. 80-340,80-340 |
| Citation | 397 So.2d 442 |
| Parties | Salem DANDASHI and Mansham Dandashi, his wife, Appellants, v. Jay B. FINE, M. D., and Mark Gordon, M. D., Appellees. |
| Court | Florida District Court of Appeals |
Brumer, Cohen, Logan, Kandell & Redlus, Daniels & Hicks and Sam Daniels, Miami, for appellants.
Lanza, Sevier & Womack, Coral Gables, Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for appellees.
Before HENDRY, NESBITT and FERGUSON, JJ.
Appellant Salem Dandashi, a fifty-seven year old carpenter suffered skull fractures on February 4, 1977 when struck in the face with a hammer wielded by a co-employee. On February 9, 1977, appellee, Dr. Jay Fine, assisted by appellee, Dr. Mark Gordon, performed surgery on Dandashi to repair a fracture of the orbital floor of his left eye. Shortly after he awoke from surgery on the night of February 9, 1977, Dandashi discovered that he had no vision in the left eye. He brought this malpractice action against the doctors. After hearing all the evidence, the trial court directed a verdict for Dr. Gordon on all issues and directed a verdict for Dr. Fine on the claim under the Florida Medical Consent law. A jury found Dr. Fine not negligent on the remaining issue.
Dandashi raises four issues by this appeal, (1) exclusion of the testimony of Dr. Tenzel, an expert witness, was reversible error, (2) the exclusion of the deposition testimony of Dr. Ballantyne, an expert witness, was reversible error, (3) directing of a verdict on the issue of informed consent to the surgery was reversible error, (4) directing of a verdict for Dr. Gordon was reversible error.
Dr. Tenzel was listed as an expert witness for the appellants. He called the appellee, Dr. Fine, went to lunch with him, and discussed the case. There is no dispute that this was done without the knowledge of appellants' counsel. The trial court ruled that Dr. Tenzel would not be permitted to testify. When appellants' counsel moved to make a proffer of the excluded testimony the court ruled the "motion to proffer is denied." Appellees have directed us to other discussions in the record where the court allows appellants to place "anything else" or "something else" into the trial record, however, there is no showing that the court intended to reverse its emphatic prior ruling denying the motion to proffer. The exclusion of Dr. Tenzel's testimony is not justified by anything of record and we are unaware of any authority in this state for exclusion of the testimony of an expert witness because that witness, without the knowledge of counsel, has discussed the case with the opposing party, who is also an expert.
The same issue was presented to the New Jersey appellate court in Reilley v. Keswani, 137 N.J.Super. 533, 350 A.2d 74 (1975). The court there held:
Fundamental to, if not the sole purpose of, the administration of our system of justice is the search for truth...
True, DR 7-104(A)(1) proscribes an attorney for one party from communicating or causing another to communicate concerning the matters in controversy with another party he knows to be represented by counsel, without the prior consent of counsel for the other party...
Absent a violation of DR 7-104(A)(1), it was improper to bar Dr. Diamond as a witness and to preclude him from any further participation in the case ... and to suppress his report...
Dr. Diamond is entitled to participate in this cause to the fullest extent ... on all aspects of the case within his knowledge and expertise, including all matters founded directly or indirectly upon his discussion with Dr. Keswani.
The attempt by appellees to distinguish Reilley, supra, fails to persuade. Emphasis in that case was on the quest for truth and whether the plaintiffs or their counsel had engaged in any impropriety. The admissibility of the testimony didn't turn on the relationship of the doctor to the plaintiff. We think Reilley, supra, was correctly decided.
That the record was supplemented with a discovery deposition of Dr. Tenzel does not cure the error of exclusion. It was a discovery deposition taken by defense counsel with no cross-examination by plaintiff. From such a deposition we cannot conclude what evidence Dandashi would have presented through the witness. What is quite apparent, however, is that Dr. Tenzel's testimony was important to appellants' case. 1
The entire deposition testimony of Dr. Ballantyne was excluded by the trial court on the grounds, as asserted by defendants, that the hypothetical questions presented consisted of "res ipsa opinion," "without a proper predicate," and called for "speculative" answers. We have examined the record and conclude that most of the objections raised were vague and without merit.
Dr. Ballantyne is a plastic surgeon who has performed approximately thirty-six procedures to repair orbital floor fractures and has been responsible for well over six hundred such operations at Roosevelt Hospital in New York City. The following colloquy appears early in the deposition:
Q. Doctor, I have requested that you review certain records, depositions, x-rays, including hospital records, 2 x-rays and depositions of Dr. Fine and Dr. Gordon in relation to their care and treatment of one Salem Dandashi.
Have you done so?
A. Yes.
Q. Doctor, let me give you a hypothetical situation and then I will ask you some questions concerning that hypothetical.
Assume that Salem Dandashi is 57 years old and he suffered facial injuries of the left malar and orb. Prior to a surgical repair he had 20/20 vision in the left eye, he had full motility, no double vision, no enopthalmos, no muscle entrapment. But after surgery, following surgery that involved an open internal fixation of the left malar orbital floor fracture and silastic implant in the orbital floor, and further assume that upon recovery, Salem Dandashi had lost all vision in his left eye, but the eyeball itself retained normal internal pressure.
Based on this hypothetical, do you have an opinion based on reasonable medical probability as to why Salem Dandashi lost vision in his left eye?
MR. LARKIN (attorney for defendant Mark Gordon): Let me object to the form of the question in that it leaves out essential facts and appears to be simply asking the witness to give a medical opinion in the form of a res ipsa.
Q. You may answer.
MR. WOMACK (attorney for defendant Jay B. Fine): Same objection on behalf of Dr. Fine.
A. Following that script, the reason that you lost sight in your eye is due to physical interruption of the optical nerve and/or compromise of the blood supply to the optic nerve or to the globe itself.
BY DR. REDLUS (attorney for plaintiffs):
Q. Doctor, do you have an opinion based on the reasonable medical probability of what was the cause of the physical interruption of the optic nerve?
The appellees might have conducted a voir dire examination of the expert as to the facts or data he would rely upon for his opinion before the opinion was rendered. Alternatively, they might have cross-examined the witness to require him to specify the facts upon which he relied in support of his opinion. Neither was done here so as to aid the trial court in determining the admissibility of the testimony. 3 However, we need not belabor this point. The record here shows that the hypothetical question which would have formed the basis of appellants' expert witness's opinion comported with the evidence and tracked the criteria for the basis of such an opinion. Santos Wrestling Enterprises, Inc. v. Perez, 367 So.2d 685 (Fla.3d DCA 1979), cert. dismissed, 372 So.2d 470 (Fla.1979). All of the cases cited by appellees are distinguishable. 4 The trial court erred in excluding all the testimony of Dr. Ballantyne. Because the testimony of the expert was critical, the error was prejudicial.
Plaintiff testified, mostly through an interpreter, that he repeatedly told his doctors he didn't need an operation because his vision was good. His testimony that he had torn up the first consent form given to him is undisputed. He also claims he didn't understand the second document executed by him to be another consent form. 5 Section 768.46(4)(a), Florida Statutes (1979) creates a conclusive presumption that a signed consent is valid but that the presumption is conditioned on the consent...
To continue reading
Request your trial
-
Jackson By and Through Whitaker v. Hertz Corp.
...v. Davis, 353 So.2d 168 (Fla. 3d DCA 1978) (Emphasis added). See also Hendricks v. Dailey, 208 So.2d 101 (Fla.1968); Dandashi v. Fine, 397 So.2d 442 (Fla. 3d DCA 1981); Behar v. Root, 393 So.2d 1169 (Fla. 3d DCA 1981).2 Hertz rented the automobile to only the person purporting to be Linda M......
-
Valcin v. Public Health Trust of Dade County
...(1981). Simply stated, no presumption of a valid consent will arise unless the consent is an informed consent. See Dandashi v. Fine, 397 So.2d 442 (Fla. 3d DCA 1981). Consent is "informed" where the person knows the dangers and degrees of danger of a certain procedure to be performed. Bower......
-
Ritz v. Florida Patient's Compensation Fund
...whether to incur the risk by accepting the proposed treatment or avoid that risk by foregoing it. (emphasis supplied). Dandashi v. Fine, 397 So.2d 442 (Fla. 3d DCA 1981), is distinguishable. There, on the issue of consent, the record was clear that the patient, with a language barrier, had ......
-
Snow v. Nelson
...of any evidence that a court should direct a verdict for a defendant. Hendricks v. Dailey, 208 So.2d 101 (Fla.1968); Dandashi v. Fine, 397 So.2d 442 (Fla. 3d DCA 1981). I would reverse and reinstate the jury 1 There is, thus, little solace for the torted in Lord Kenyon's assertion that "[i]......