Davidson v. Gaillard, 90-429

Decision Date22 July 1991
Docket NumberNo. 90-429,90-429
PartiesThomas E. DAVIDSON, as Personal Representative of the Estate of Debra K. Davidson, Appellant, v. Dr. David H. GAILLARD and Humana Hospital of Fort Walton Beach, Florida, a Florida corporation, Appellees. 584 So.2d 71, 16 Fla. L. Week. D1879
CourtFlorida District Court of Appeals

Robert G. Kerrigan of Kerrigan, Estess & Rankin, Pensacola and Joel S. Perwin of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, for appellant.

S. William Fuller, Jr. and J. Craig Knox of Fuller, Johnson & Farrell, P.A., Tallahassee, for appellee Gaillard.

Frank C. Bozeman and John W. Boult of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Pensacola, for appellee Humana Hosp. of Fort Walton Beach.

NIMMONS, Judge.

In this medical malpractice action, appellant challenges the trial court's denial of a motion for directed verdict regarding proximate causation and its admission of evidence regarding a pending claim against Air Force physicians. We reverse.

In 1981, doctors diagnosed Mrs. Davidson with, and treated her for Hodgkin's Disease, a form of lymphoma. They performed surgery and radiation therapy which resulted in her cancerous condition going into remission. When she experienced fatigue, abdominal pain, and itching in July or August 1983, she consulted an Air Force internal medicine physician, Dr. Ledbetter, for her illness. 1 Dr. Ledbetter referred her to appellee Dr. Gaillard, a diagnostic radiologist at Humana Hospital. In October, 1983, he performed a computerized axial tomography (CT) scan. Finding no abnormal mass or tumor, Dr. Gaillard concluded that there was no evidence of lymphoma. Based on Dr. Gaillard's diagnosis, Dr. Ledbetter informed Mrs. Davidson that neither chemotherapy nor further surgery was needed.

After Mrs. Davidson experienced further symptoms, Dr. Ledbetter asked another Air Force physician in February, 1984, to review the October, 1983, CT scan for signs of Hodgkin's Disease. This time, the consulting radiologist, Dr. Harisomovitch, located a four to five centimeter solid mass on the previous CT scan which indicated possible recurrent Hodgkin's Disease. Dr. Ledbetter then referred Mrs. Davidson to Dr. Brinkley, a radiologist at West Florida Regional Medical Center, who evaluated a new CT scan and found an abdominal mass, which was apparently invading her stomach wall. Dr. Brinkley also recommended another diagnostic procedure testing the upper-gastrointestinal tract for cancerous growth. The Air Force physicians conducted such further testing, which confirmed that the cancer was spreading to her stomach.

Dr. Ledbetter ruled out chemotherapy as an appropriate means to control the cancerous spread. In April 1984, Dr. Silva, an Air Force surgical oncologist, performed an emergency operation on Mrs. Davidson and removed a large portion of her stomach and some of her pancreas. Subsequently, Dr. Silva performed another surgical procedure to remove the remaining tumor since it was now obstructing her bowel. As a result of the surgery, Mrs. Davidson's bowel was perforated and fecal matter spilled into her abdomen. Additionally, hospital personnel improperly placed a feeding tube into her abdomen, rather than her small bowel, thereby raising the chance of bacterial infection. 2 After this condition was discovered, the Air Force doctors administered chemotherapy treatment, but a few days later, Mrs. Davidson died. 3

The personal representative of the estate of Mrs. Davidson, Thomas E. Davidson, filed suit against Dr. Gaillard and Humana Hospital of Fort Walton Beach for negligence. Before the trial court commenced, appellant, the decedent's husband and plaintiff below, moved in limine for an order excluding reference to a then-pending claim by the appellant against the Air Force physicians. The court denied the motion and ruled that it would allow reference to the claim against the government physicians. The trial court requested that the parties draft a stipulation which would inform the jury that the outcome of such claim should not affect their deliberations.

In the opening statement, the appellant referred to the Air Force claim. Appellees also referred to the Air Force claim, both in the opening statement and during cross-examination of an expert witness, Dr. Palmer. During closing argument, appellees mentioned that Dr. Palmer had been brought in by the plaintiffs to prove their case of negligence against the appellees, but Dr. Palmer had actually criticized the Air Force doctors for negligence. The trial court instructed the jury that the existence of the separate claim should not affect their deliberations.

Both sides presented expert testimony on the issue of negligence. Appellant's expert oncologist, Dr. Palmer, testified that if Dr. Gaillard had diagnosed Mrs. Davidson's recurrent Hodgkin's Disease in October, 1983, chemotherapy treatment could have abated the progress of the disease. Dr. Coonley, a specialist in oncology and hematology, who testified for the defense, believed that had the disease been detected in October, 1983, then Mrs. Davidson would have had "an 80 to 90% [chance] of complete remission and a 50 to 60% chance of long-term survival." His opinion was predicated upon the assumption that the cancer had not already spread to the stomach.

The appellees presented expert testimony that the Air Force doctors' decision to surgically remove Mrs. Davidson's tumor was medically inappropriate. Dr. Noyes, a hematology and oncology professor at the University of Florida, testified that the Air Force physicians breached their duty of care in failing to employ a pulmonary specialist to review Mrs. Davidson's condition during her surgeries. He testified that Mrs. Davidson's death was primarily the result of pulmonary complications and massive infection, rather than the Hodgkin's Disease. He also opined that Dr. Gaillard's failure to detect the tumor on the October, 1983 CT scan did not cause Mrs. Davidson's death.

At the close of evidence, each party moved for directed verdict on the issue of proximate causation. The trial court denied the motions and, without objection, gave the standard jury instruction on negligence and causation. 4 The general verdict form that the jury was given asked: "Was there negligence on the part of defendant, David H. Gaillard, M.D., which was a legal cause of death to Debra Davidson?" The jury's verdict was "no." The plaintiff moved for a new trial, and the trial court denied the motion.

Appellant first argues that the trial court erred in denying his motion for directed verdict on the issue of proximate causation. Although appellant acknowledges that proximate cause is ordinarily a question for the jury, he contends that an exception to this rule applies when an original tortfeasor's negligent act causes a plaintiff to seek medical treatment which is negligently provided and that, in such cases, negligent medical treatment is foreseeable as a matter of law. That...

To continue reading

Request your trial
12 cases
  • Rine By and Through Rine v. Irisari, 20459
    • United States
    • West Virginia Supreme Court
    • June 11, 1992
    ... ... Perkins, 252 F.Supp. 563 (D.C.1966); Davidson v. Gaillard, 584 So.2d 71 (Fla.Dist.Ct.App.1991); Carter v. Shirley, 21 Mass.App. 503, 488 N.E.2d ... ...
  • Letzter v. Cephas
    • United States
    • Florida District Court of Appeals
    • January 24, 2001
    ...of Stuart v. Hertz has expressly been held to apply even when the initial tortfeasor is a physician as well. See Davidson v. Gaillard, 584 So.2d 71, 73-74 (Fla. 1st DCA 1991), disapproved on other grounds by Barth v. Khubani, 748 So.2d 260 (Fla. Ultimately, the trial judge decided to give t......
  • Specialty Hospital-Gainesville, Inc. v. Barth
    • United States
    • Florida District Court of Appeals
    • July 15, 2019
    ...the initial tortfeasor is a physician as well." Letzter v. Cephas, 792 So. 2d 481, 485 (Fla. 4th DCA) (citing Davidson v. Gaillard, 584 So. 2d 71, 73–74 (Fla. 1st DCA 1991), disapproved on other grounds by Barth v. Khubani, 748 So. 2d 260 (Fla. 1999) ), review granted, 796 So. 2d 535 (Fla. ......
  • Barth v. Khubani
    • United States
    • Florida Supreme Court
    • October 7, 1999
    ...HARDING, C.J., and WELLS, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur. 1. Additional conflict cases include Davidson v. Gaillard, 584 So.2d 71 (Fla. 1st DCA 1991),A.G. Edwards & Sons, Inc. v. Weinreich, 572 So.2d 993 (Fla. 2d DCA 1990), and LoBue v. Travelers Ins. Co., 388 So.2d 1349 (......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT