DeAlmeida v. Graham
| Decision Date | 08 July 1987 |
| Docket Number | 84-1096,84-1652 and 85-199,84-1617,Nos. 84-1095,84-1612,s. 84-1095 |
| Citation | 524 So.2d 666,12 Fla. L. Weekly 1658 |
| Parties | 12 Fla. L. Weekly 1658 Mauricio J. DeALMEIDA, M.D., Mauricio J. DeAlmeida, M.D., P.A., C. Lawrence Reid, M.D., and North Broward Hospital District d/b/a Broward General Medical Center, Appellants, v. Carl T. GRAHAM, Appellee. NORTH BROWARD HOSPITAL DISTRICT d/b/a Broward General Medical Center, Appellant, v. Carl T. GRAHAM, et al., Appellees. |
| Court | Florida District Court of Appeals |
We grant appellee's motion for rehearing and withdraw our opinion filed December 10, 1986, and substitute the following opinion.
This appeal arises out of a medical malpractice action in which a jury awarded appellee $371,000 for damages resulting from the negligence of two doctors and a hospital. The trial court also awarded appellee $185,000 for attorney's fees. We now consolidate case number 85-199 with case numbers 84-1095, 84-1096, 84-1612, 84-1617 and 84-1652.
Appellee entered Broward General Medical Center for repair of a bleeding gastric ulcer by removal of a portion of his stomach. Appellant DeAlmeida acted as primary surgeon and appellant Reid assisted DeAlmeida in the surgery. Appellee stayed in the hospital for approximately two weeks following surgery and then went to a convalescent home. Initially appellee appeared to have a normal recovery, however, he began having pain, difficulty walking, and constant vomiting. He collapsed five days later. On readmission to the hospital, X rays disclosed a Kelly clamp left in his abdomen. Dr. DeAlmeida and Dr. Reid operated and removed the clamp. Appellee convalesced for two months following the second surgery. He said he never felt quite right thereafter. He entered the hospital a third time for treatment of a preexisting diabetic condition that he claimed was aggravated by the two prior operations.
Appellants DeAlmeida and North Broward Hospital District d/b/a Broward General Medical Center admitted liability for negligence and the court entered a directed verdict against them. At the close of appellee's case, Reid moved for a directed verdict claiming that appellee failed to present any competent expert testimony concerning his duty to ensure the removal of the Kelly clamp. The trial court denied his motion. The trial court also denied appellants' motion for a directed verdict on appellee's claim for future medical care and treatment and future lost wages.
Appellants present nine issues for resolution in these consolidated appeals. All appellants contend that the trial court erred by failing to direct a verdict on future medical expenses; by failing to grant a new trial because appellee's counsel made improper comments during closing argument; by failing to reduce the final judgment to reflect payments made from collateral sources; by failing to declare section 768.56, Florida Statutes unconstitutional; and by making a grossly excessive award of attorney's fees to appellee's counsel. Appellant Reid claims the trial court erred when it denied his motion for a directed verdict because appellee failed to present competent expert testimony concerning the duties of a board certified assistant surgeon and when it denied his request for a special interrogatory verdict form which would have apportioned liability among all defendants. Appellant North Broward Hospital District contends that the trial court erred in failing to apply section 768.28, Florida Statutes (1986 Supp.), to the hospital district and by failing to limit the award of attorney's fees in accordance with section 768.28(8), Florida Statutes (1986 Supp.).
Appellants first challenge the trial court's failure to direct a verdict on future medical expenses and contend that the record does not contain sufficient evidence to support this claim. The jury returned a verdict of $50,000 for future medical expenses and reduced the award to present money value of $40,000. Six medical witnesses gave conflicting testimony on the cause of the aggravation of appellee's preexisting diabetes. Appellants argue that none of the witnesses testified concerning the need for future medical treatment. Appellee responds by pointing out that a radiologist testified that X rays showed a bowel obstruction caused by adhesions. He stated that the adhesions were caused by a chronic inflammatory process resulting from the existence of the clamp left in appellee's abdomen for three weeks and that the adhesions were permanent.
Appellee relies on Sullivan v. Price, 386 So.2d 241 (Fla.1980) and Corbett v. Dade County Board of Public Instruction, 372 So.2d 971 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1192 (Fla.1980), to support his argument that a jury may reasonably infer the likelihood of future damages merely from "the nature of [the] injury, its duration, and lack of recovery at the time of trial." Sullivan, 386 So.2d at 241. Appellants agree that the reasons articulated in Sullivan and Corbett apply to appellee's claim for future pain and suffering but contend that these cases do not relieve an injured plaintiff from the burden of establishing by competent evidence a basis on which to award a sum for future medical expenses. Appellee responds to this argument by citing National Car Rental Systems, Inc. v. Holland, 269 So.2d 407 (Fla. 4th DCA 1972) wherein we held:
[I]t is true that no medical witness gave any estimate as to the precise amount of money that would be involved in future medical care for the plaintiff, but the jury did have before it the medical bills which had been theretofore incurred, and from those the jury could get at least some indication of the expense of medical care. ... Simply because the plaintiff did not adduce more definitive evidence as to the frequency with which plaintiff would need medical care and attention, nor the nature, extent and cost thereof, did not make it error for the court to instruct on this element of damages when there was evidence to show that the plaintiff would require medical care the remainder of his life.
While we find evidence in the record from which the jury could infer the need for future medical treatment, we do not find evidence in the record from which the jury could, with reasonable certainty, determine the amount of medical expense appellee would be likely to incur in the future. Appellee concedes that there is no direct evidence in the record on claims for future medical care or its probable cost. We are not persuaded by appellee's argument that the amount of past medical expenses furnished a reasonable basis from which the jury could draw inferences as to the facts and thus compute the amount of future medical expense. The only basis for the award of future medical expenses is highlighted in appellee's closing argument:
His past medical bill to take the clamp out and to go to North Broward Hospital came to $7,289.35. I figure it is reasonable to assume that over the years he is going to have an average of $2,500 a year in medical expenses when they hospitalize him and they check him again when he feels so bad that he has got to go to a doctor.
We find the evidence insufficient to support the jury's award for future medical expenses, and we hold that the final judgment must be reduced by the amount awarded for this item of damage.
In their second point appellants argue that during closing argument appellee's counsel asked for retribution for the injuries sustained by appellee. They claim that the amount of the jury's award reflects a punitive element and demonstrates the effect that counsel's remarks had on the jury. Appellants did not object to the argument. We have reviewed the record and conclude that appellee's remarks did not constitute fundamental error. We find no reversible error in this point.
Appellants contend in their third point on appeal that the trial court erred when it failed to alter or amend the judgment to reduce the amount of the verdict by the amount of the collateral sources received by appellee. During trial, counsel agreed that the issue of collateral sources would be presented post trial. Appellee argues that the trial court's failure to adjust the verdict to reflect the amount of the collateral sources "if any" cannot be reviewed by this court because appellants failed to produce any evidence concerning collateral sources. We disagree. Section 768.50(1), Florida Statutes (1983) provides:
[T]he court shall reduce the amount of such award by the total of all amounts paid to the claimant from all collateral sources which are available to him; however, there shall be no reduction for collateral sources for which a subrogation right exists. Upon a finding of liability and an awarding of damages by the trier of fact, the court shall receive evidence from the claimant and other appropriate persons concerning the total amounts of collateral sources which have been paid for the benefit of the claimant or are otherwise available to him
[Emphasis supplied].
The language of the statute is clear and the trial court's failure to conduct a hearing on appellants' motion to reduce the judgment by the amount of any collateral sources constituted error.
We will next discuss the arguments raised by appellant Reid concerning his liability for the injuries sustained by appellee. Reid claims that the trial court should have granted a directed verdict because appellee failed to present competent...
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