Dorfman v. Schwabl
| Decision Date | 22 December 2000 |
| Docket Number | No. 5D99-3195.,5D99-3195. |
| Citation | 777 So.2d 427 |
| Parties | Charles E. DORFMAN, M.D., Appellant, v. Bruce SCHWABL & Jeanette Schwabl, etc., Appellee. |
| Court | Florida District Court of Appeals |
Thomas E. Dukes, III & Ruth C. Osborne of McEwan, Martinez, Luff, Dukes & Ruffier, P.A., Orlando, for Appellant.
Stephan W. Carter, Winter Park, and James R. Provencher, Orlando, for Appellee.
In this medical negligence case, defendant Charles F. Dorfman, M.D., timely appeals the final judgment entered in favor of plaintiffs Christopher Schwabl and his parents, Bruce and Jeannette Schwabl. We affirm.
On 21 October 1996, Christopher, then a fourteen year old, developed abdominal pain in the early evening after school. The pain worsened and his mother brought him to Florida Hospital Altamonte between 10 and 11 p.m. The emergency room physician determined that he likely had testicular torsion in his right testicle, a condition which can lead to the loss of the testicle if not treated correctly. Dorfman, a urologist on staff, was called at home to come to the hospital and examine Christopher. By the time Dorfman observed Christopher, Christopher's pain had apparently subsided. Dorfman determined that just as Christopher had spontaneously torsed, he must have spontaneously detorsed and thus was no longer in danger of losing his testicle. Dorfman reached this conclusion despite two medical tests which indicated blood was still not flowing to Christopher's testicle. Dorfman sent Christopher home at 4 a.m. on the 22nd, rather than performing a surgery called an orchiopexy that would have corrected the bellclapper anomaly in both testicles, and prevented any further possibility of torsion. Christopher saw Dorfman later that same day experiencing no pain, but the following day Christopher woke up with the recurrence of pain and his mother took him back to Dorfman's office. Dorfman rushed him back to the hospital and performed surgery. Christopher's right testicle was dead. Dorfman removed the dead testicle. Shortly thereafter, this medical malpractice action commenced.
Christopher and his parents filed their complaint, alleging that Dorfman had breached the standard of care for a doctor treating a young man presenting with testicular torsion. Originally set for an August 1999 trial, the trial finally took place in September 1999 and lasted four days. The jury returned a verdict in favor of the Schwabls and awarded $675,000.00 in past and future non-economic damages.
Dorfman raises several issues in his appeal. Pursuant to Dorfman's motion in limine, the trial court initially ruled that the Schwabls' counsel could not inquire regarding the five times Dorfman had failed his board certification test prior to treating Christopher. Instead, the trial court determined that the Schwabls' counsel could only establish that Dorfman was not board certified and that he had unsuccessfully taken the board exam. The trial court revisited that decision when Dorfman's counsel made an issue out of one of the Schwabls' experts having failed the board certification test himself, repeatedly addressing the fact that the expert had failed his first board certification test. That questioning, intentionally or not, severely emphasized that the expert had failed his first board certification test.
Under these circumstances, it would have been unfair to limit the examination of Dorfman according to the strictures of the prior ruling, because it would have left the jury with the incorrect impression that Dorfman and this expert were on the same footing as to both having failed the board certification test. By raising and emphasizing the point that this expert had failed his first board certification test, Dorfman opened the door for the testimony regarding Dorfman's having failed the test five times. These physicians' testimonies were going to be compared and contrasted by the jury, and by emphasizing the expert's having failed his first board certification test, Dorfman was tacitly asking the jury to discount his testimony.
Dorfman also complains that he should not have had to admit that he failed the test seven times, as he had only failed the board certification test five times prior to treating Christopher and thus the two subsequent failures were irrelevant. In fact, the trial court ruled that only the five failures should be introduced, and it was defense counsel's inartful question which caused Dorfman to admit to seven failures of the board certification test. Contrary to appellant's self-serving contention that this testimony was the "single most devastating piece of evidence in this case," the seven failures were only briefly referred to during closing argument and did not figure largely in any testimony before the jury. The single most devastating piece of evidence in this case was Christopher Schwabl's condition.
The next issue raised by Dorfman concerns the rule of completeness and a proffer of testimony by Dorfman's expert, Dr. Martin Dineen, that was not admitted by the trial court. According to the proffer, Dineen told the Schwabls' counsel that he could provide Christopher a prosthetic testicle, and that because the prosthesis was part of a study there would be no cost to Christopher if he accepted the offer. Counsel then relayed this conversation to Jeanette Schwabl. Jeanette then testified about the conversation she had with her counsel, the subject matter of which was her counsel's conversation with Dineen, and during her testimony she stated that the prosthesis was experimental.1 Jeanette did not testify about a conversation she had with Dineen, because she did not have a conversation with Dineen.
Dorfman contends that Dineen should have been allowed to testify that he did not tell the Schwabls' counsel that the prosthesis was experimental, because of the rule of completeness. See Eberhardt v. State, 550 So.2d 102, 105 (Fla. 1st DCA 1989)
(when portions of a conversation are admitted, the rule of completeness generally allows admission of the remainder of the conversation "that in fairness [is] necessary for the jury to accurately perceive the whole context of what had transpired..."). Jeanette Schwabl testified about a conversation she had with her counsel; the conversation Dineen had with counsel was not admitted. Therefore, the rule of completeness does not apply, even if the conversation Jeanette had with her counsel concerned the conversation her counsel had with Dineen.2
Cf. Ramirez v. State, 739 So.2d 568, 580 (Fla.1999),
cert. denied, 528 U.S. 1131, 120 S.Ct. 970, 145 L.Ed.2d 841 (2000).
The dissent suggests that by rejecting Dr. Dineen's testimony, the trial court denied the jury material evidence on which it could consider the reasonableness of the Schwabls' rejecting the prosthesis. Other experts, however, testified that prosthetic testicles were available and not experimental. Therefore, the jury was aware that non-experimental surgical implantation of a fake testicle was available to Schwabl, even without the proffered testimony.
Next, Dorfman complains on appeal that no evidence of potential infertility, or the fear of potential infertility, should have been introduced into this trial. Dorfman overlooks, as does the dissent, the fact that it was Dorfman's counsel's questions which initially injected this issue into the case. During Dorfman's cross-examination of one of the Schwabls' experts, the questioning led the expert to address the possibility of a loss of fertility because of the lost testicle. For this reason, the court reversed its decision to not allow argument about the fear of possible infertility. The court pointed out that defense counsel did not object to the expert's testimony on possible infertility and the fear of it, nor did defense counsel move to strike it. We cannot find the court erred, when Dorfman raised the issue about which he now complains.
Lastly, Dorfman complains that the Schwabls did not prove disfigurement damages within a reasonable certainty. See ...
To continue reading
Request your trial
-
PROPERTIES v. RAVENWOOD CLUB INC.
...Inc., 224 Ga.App. 31, 479 S.E.2d 363, 365 (1996), Doucette v. Doucette, 168 Vt. 626, 725 A.2d 901, 904 (1998), Dorfman v. Schwabl, 777 So.2d 427, 429-30 (Fla.Dist.Ct.App.2000). The Supreme Court has held: It was assigned as error that the Court, over the objection of defendant's counsel, pe......
-
M.B. v. S.P.
...we hold that his testimony did not make his repeated failures of the board certification exam relevant. Citing Dorfman v. Schwabl, 777 So.2d 427 (Fla. 5th DCA 2000), M.B. also asserts that S.P. opened the door to the evidence once he qualified his expert witnesses by eliciting testimony abo......
-
Palanki v. Vanderbilt University
...Inc., 224 Ga.App. 31, 479 S.E.2d 363, 365 (1996), Doucette v. Doucette, 168 Vt. 626, 725 A.2d 901, 904 (1998), Dorfman v. Schwabl, 777 So.2d 427, 429-30 (Fla.Dist.Ct.App.2000). The Supreme Court has It was assigned as error that the Court, over the objection of defendant's counsel, permitte......
-
Ring Power Corp. v. Condado-Perez
...a party introducing evidence cannot complain on appeal that the evidence was erroneously admitted."); Dorfman v. Schwabl , 777 So.2d 427, 429–30 (Fla. 5th DCA 2000) ("We cannot find the court erred, when Dorfman raised the issue about which he now complains."). It is apparent that the trial......
-
Using medical literature on direct examination to win the "battle of the experts".
...Committee Note, 2000 Amendments. See generally Weinstein, supra note 22, [section] 703.0511]. (30) See generally Dorfman v. Schwabl, 777 So. 2d 427 (Fla. 5th D.C.A. 2001) (counsel opened door to evidence excluded in limine by questioning expert (31) See cases cited in notes 32 and 33, supra......