Dawson v. Weems

• Citation: 352 So.2d 1200
• Decision Date: 15 November 1977
• Docket Number: A,Nos. 76-32,76-40 and 76-189,MC-108,76-33,s. 76-32
• Parties: Barbara DAWSON, Administratrix of the Estate of Jack Dawson, Deceased, Appellant, v. Wade S. WEEMS, M.D., E. Costatino, Jr., M.D., Henry L. Kaye, Esq., Administrator of the Estate Von D. Mizell, M.D., Deceased, North Broward Hospital District, a political subdivision of the State of Florida d/b/a Broward General Medical Center, Weems-Costatino, P.A., Professional Insurance Company of New York, a New York Corporation, Hartford Accident and Indemnity Company, a Connecticut Corporation, Argonaut Insurance Company, a California Corporation, Oscar S. Lenit, Jr., M.D., and Oscar S. Lenit, Jr., P.A., General Reinsurance Corporation, a New York Corporation, and Francis Everett Brander, as lead Underwriter subscribing to certificate of insurance numbered 191-71-ppellees (three cases). Barbara DAWSON, Administratrix of the Estate of Jack Dawson, Deceased, Appellant, v. Oscar S. LENIT, Jr., M.D., and Oscar S. Lenit, Jr., P.A., Appellees.
• Court: Court of Appeal of Florida (US)

Page 1200

352 So.2d 1200

Barbara DAWSON, Administratrix of the Estate of Jack Dawson, Deceased, Appellant, v. Wade S. WEEMS, M.D., E. Costatino, Jr., M.D., Henry L. Kaye, Esq., Administrator of the Estate Von D. Mizell, M.D., Deceased, North Broward Hospital District, a political subdivision of the State of Florida d/b/a Broward General Medical Center, Weems-Costatino, P.A., Professional Insurance Company of New York, a New York Corporation, Hartford Accident and Indemnity Company, a Connecticut Corporation, Argonaut Insurance Company, a California Corporation, Oscar S. Lenit, Jr., M.D., and Oscar S. Lenit, Jr., P.A., General Reinsurance Corporation, a New York Corporation, and Francis Everett Brander, as lead Underwriter subscribing to certificate of insurance numbered 191-71-MC-108, Appellees (three cases).

Barbara DAWSON, Administratrix of the Estate of Jack Dawson, Deceased, Appellant, v. Oscar S. LENIT, Jr., M.D., and Oscar S. Lenit, Jr., P.A., Appellees.

Nos. 76-32, 76-33, 76-40 and 76-189.

District Court of Appeal of Florida, Fourth District.

Nov. 15, 1977.

Rehearings Denied Jan. 10, 1978.

Robert Orseck, of Podhurst, Orseck & Parks, Miami, Sheldon J. Schlesinger of Simons & Schlesinger, and Susan Goldman, Miami, for appellant.

Paul R. Regensdorf, of Fleming, O'Bryan & Fleming, Fort Lauderdale, for appellee North Broward Hospital District.

George E. Bunnell, of Huebner, Shaw & Bunnell, Fort Lauderdale, for appellees Henry L. Kaye, Administrator of the Estate of Von D. Mizell, M.D., and Francis Everett Brander, as lead Underwriter subscribing to Certificate of Insurance.

Edna L. Caruso, of Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, for appellees Lenit.

DOWNEY, Judge.

These consolidated cases arise out of appeals from separate orders entered in a medical malpractice suit brought by appellant against the North Broward Hospital District d/b/a Broward General Medical Center and three doctors, Weems, Costatino, Lenit and the personal representative of the estate of a fourth doctor, Von D. Mizell. A separate appeal by Weems and Costatino is treated in an opinion filed in Case No. 75-2298, Fla.App., 352 So.2d 1196.

Jack Dawson, appellant's decedent, while working on a construction site, fell one story and landed on a wheelbarrow, causing internal injuries. Dawson was admitted to North Broward Hospital on September 25, 1972, by Dr. Von Mizell, who assumed the general responsibility and management of the patient throughout his hospital stay. During the course of treatment, Dr. Mizell requested consultation with a general surgeon, Dr. Oscar S. Lenit, Jr., and with a firm of urologists, Weems and Costatino, P.A. On September 28, 1972, it was determined that surgery was indicated as a result of which Dawson's right kidney was removed. The evidence is clear that Dawson continued to have some internal bleeding after the operation, as well as some external bleeding at the operative site. The negligent conduct charged against all of the defendants in this case is asserted to have taken place during the days immediately following the kidney removal.

Dr. Oscar S. Lenit, Jr., M.D. (Cases No. 76-40 and 76-189).

The jury found Dr. Lenit not guilty and the trial court denied appellant's motion for a new trial as to Dr. Lenit.

Dr. Lenit is a general surgeon who was called in for consultation by Dr. Mizell. There was evidence adduced that during the course of the operation to remove Dawson's kidney Dr. Weems told a nurse to call Dr. Lenit to the hospital and that Dr. Lenit came into the operating room for a few minutes, looked at the patient and then departed, promising to be available if needed. Other witnesses testified that Dr. Lenit was never in the operating room and that he had no professional relationship with Dawson during or after the operation. Several experts testified that, whether or not Dr. Lenit was in the operating room, his conduct in the case did not fall below the required standard of care. On the other hand, one expert testified that, if Dr. Lenit had been in the operating room during the operation, he should have followed the patient thereafter. In any event, the testimony can be characterized as in conflict. There is substantial competent evidence to support the jury verdict in Lenit's favor and the trial judge, as he had a right to do on this record, approved the verdict by denying plaintiff-appellant's motion for new trial.

We have examined appellant's other contentions regarding the comments of Lenit's counsel in closing argument and fail to find any reversible error.

Dr. Von D. Mizell, M.D., (Case No. 76-33)

The court directed a verdict in favor of Dr. Mizell. It is this order which appellant appeals.

Dr. Mizell was the physician who admitted Dawson to the hospital and who continued in charge of Dawson's general management and care. However, the evidence does not show that Dr. Mizell acted in concert with Drs. Weems and Costatino vis-a-vis the kidney operation and post operative care and the ensuing complications. As. Dr. Turke, one of plaintiff-appellant's testified:

"A Well, normally speaking, when a consultant takes over and does the operation, he is the primary treating physician at that time and the referring physician takes a back seat, unless there is some prior arrangement.

"Suppose an internist sends a patient to me and says, 'I want you to follow the blood and the electrolytes' that is all that he would be doing.

"But in a surgical procedure it is the surgeon's primary responsibility." (T. 688)

"Do you have an opinion as to whether Von D. Mizell in any way deviated from the standards of care with regard to the care and treatment of this patient?

"A No.

"Q You have no opinion or he did not?

"A No, I don't think he deviated. He called in consults when he knew he was in over his head." (T. 671-672)

Thus, we believe the applicable rule is to be found in Dohr v. Smith, 104 So.2d 29 (Fla.1958), rather than in O'Grady v. Wickman, 213 So.2d 321 (Fla.4th DCA 1968). In Dohr two of the patient's false teeth became dislodged and lost while the anesthetist was administering oxygen during surgery to remedy a duodenal ulcer. The plaintiff contended that both the surgeon and anesthetist were negligent, the surgeon vicariously as "captain of the ship." However, the court held:

"The surgeon may have been generally in command from the beginning of the operation to the end or, as appellants term him in the brief, 'captain of the ship' but it is clear to us that he and the anesthetist were working in highly expert fields peculiar to each and that despite the common goal, the successful repair of the patient's ulcer, their...