Feinstone v. Allison Hospital, Inc.

• Decision Date: 02 August 1932
• Citation: 143 So. 251,106 Fla. 302
• Parties: FEINSTONE v. ALLISON HOSPITAL, Inc.
• Court: Florida Supreme Court

143 So. 251

106 Fla. 302

FEINSTONE v. ALLISON HOSPITAL, Inc.

Florida Supreme Court, Division B.

August 2, 1932

Rehearing Denied Aug. 23, 1932.

Error to Circuit Court, Dade County; H. F. Atkinson, Judge.

Action by Alexander Feinstone against the Allison Hospital Incorporated. Judgment for defendant, and plaintiff brings error.

Affirmed.

ELLIS and BROWN, JJ., dissenting.

COUNSEL Benjamin Axleroad, of Miami, for plaintiff in error.

Blackwell & Gray, Shutts & Bowen, and Herbert S. Sawyer, all of Miami, for defendant in error.

OPINION

DAVIS J.

In the month of February, 1927, plaintiff in error Feinstone, who was plaintiff in the court below, was injured by an automobile. Blood poisoning set in, and the leg had to be amputated.

In an action ex delicto brought by Feinstone against Allison Hospital, Inc., for alleged malpractice in connection with the treatment of plaintiff's original injury, the hospital filed pleas to the effect that prior to the institution of plaintiff's action against it, plaintiff had instituted an action against the initial tort-feasor, J C. Duncan, Jr., for recovery of damages for the injury suffered by the plaintiff, for which injury the hospital was hired by the plaintiff to treat him, being the same and identical injury referred to in plaintiff's declaration in the instant suit; that Feinstone had settled and compromised the action against J. C. Duncan, Jr., for the sum of $3,500 and had executed his release therefor; that the payment of the consideration for the release was accepted by Feinstone and that a written release under seal had been executed by him prior to the filing of a praecipe for summons ad respondendum in the present case; that by reason of the plaintiff's execution of the release and the acceptance of full compensation for the injury from J. C. Duncan, Jr., plaintiff in the present case, against the Allison Hospital, Inc., was barred from prosecuting his action, because of the discharge and satisfaction of the original wrong done by J. C. Duncan, Jr.

The plea was held good on demurrer. Plaintiff thereupon declined to reply or join issue on same, whereupon final judgment of non prosequitur was entered against plaintiff on defendant's motion. The case is before us on writ of error taken to that judgment, and the proposition presented is whether or not the plea of release and satisfaction was a good answer to plaintiff's declaration against Allison Hospital, Inc.

The declaration shows that Feinstone was admitted to the Allison Hospital as a patient therein for treatment for an adequate compensation in that behalf paid by plaintiff to the hospital; that by carelessness and negligence of the hospital the injured leg of plaintiff contracted blood poisoning, which resulted in three successive amputations of plaintiff's leg in order to save his life; that the leg which was amputated is the same leg that was injured in the automobile accident; and that the injuries caused to it by the hospital's alleged malpractice were all caused in the course of the hospital's handling of plaintiff as a patient received by it as a result of the original injury inflicted by the automobile.

This court has been recently committed to the rule that when one sustains personal injuries because of the negligence of another and uses due care in selecting a physician or hospital to treat his injuries and in following the advice and instruction of the physician or hospital throughout the treatment, and a poor result is obtained, or increased damages inflicted, because of the negligence of the physician or hospital, the negligence of the one who caused the original injury will be regarded as the proximate cause of the damages flowing from the negligence of the physician or hospital, so as to impute liability therefor against the original tort-feasor. J. Ray Arnold Lumber Corp. v. Richardson (Fla.) 141 So. 133. This is the prevailing rule in the United States. See note 8 A. L. R. 506.

While the rule does not apply if through his negligence the physician or hospital causes a distinctly new injury ^[1](Purchase v. Seelye, 231 Mass. 434, 121 N.E. 413, 8 A. L. R. 503), nevertheless, if the plaintiff in his action against...