General Hospital of Greater Miami, Inc. v. Gager, s. 63-148
| Decision Date | 28 January 1964 |
| Docket Number | 63-152,Nos. 63-148,s. 63-148 |
| Citation | 160 So.2d 749 |
| Parties | The GENERAL HOSPITAL OF GREATER MIAMI, INC., a Florida corporation, Appellant, v. Louise GAGER, a widow, as Administratrix of the Estate of George B. Gager, and as the Surviving Spouse of George B. Gager, Deceased and Thomas S. Gerspacher, Appellees. Thomas S. GERSPACHER, Appellant, v. Louise GAGER, a widow, as Administratrix of the Estate of George B. Gager, and as the Surviving Spouse of George B. Gager, Deceased, and the General Hospital of Greater Miami, Inc., a Florida corporation, Appellees. |
| Court | Florida District Court of Appeals |
Knight, Smith, Underwood & Peters and Cecyl L. Pickle, Miami, for General Hospital.
Carey, Terry, Dwyer, Austin, Cole & Stephens, Miami, for Thomas A. Gerspacher.
Nichols, Gaither, Beckham, Colson & Spence, Miami, for Louise Gager.
Before CARROLL, TILLMAN PEARSON and HENDRY, JJ.
The plaintiff, Louise Gager, sued Thomas S. Gerspacher, a physician and The General Hospital of Greater Miami, Inc. for the alleged wrongful death of her husband. There was a separate suit against each defendant but they were consolidated for trial. The jury verdict was for the defendants. Plaintiff's motion for a new trial was granted upon the following ground:
'Following a long, hotly contested malpractice trial, resulting in a verdict for the Defendants, the Plaintiff filed a Motion for New Trial. The case was tried before my predecessor and the Court has had to read the record with great particularity in order to get as close an insight into the facts as possible, being confined to a study of the 'cold' record. The record, as it came to me, is lengthy and the problem involved in the Motion for New Trial is not altogether simple.
'The principle issue on this Motion for New Trial is whether there was, as a matter of law, sufficient evidence of a causal connection between the post-operative conduct of the deceased and the dehiscence and evisceration of deceased's would to sustain a jury instruction on contributory negligence.
'The Plaintiff, arguendo, admits that the deceased violated the Defendant doctor's instructions to stay in bed and use a bedpan if he had to go to the bathroom. Plaintiff testified that the deceased got out of bed and walked to the bathroom to relieve himself on the same day he came home from the hospital. The Defendant doctor testified that he gave specific instructions about staying in bed, but the Plaintiff, deceased's widow, denied any such instructions were given. However, Plaintiff, arguendo, alleges that there is no evidence in the record to support a finding that the deceased's violation of instructions caused deceased's would to open and to eviscerate.
'After a careful examination of the testimony and record, no direct and positive evidence is found that the conduct of the deceased, upon release from the hospital, caused his downfall. Nor was there any expert testimony of a 'reasonable medical certainty' that the deceased's conduct in violating the Defendant doctor's instructions caused the wound to open to eviscerate. Taken in the light most favorable to the Defendant doctor, the record discloses, by means of expert medical testimony on behalf of the doctor, that the deceased's actions possibly could have caused the deceased's wounds to open and eviscerate. * * *
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'* * * I am satisfied that there was fatal error, and the plaintiff, by the giving of this improper charge, was prejudiced, that the probable result of the trial would have been different 'The Motion for New Trial, filed by the Plaintiff herein, after due and careful consideration, is granted, and the Judgment entered thereon is vacated, set aside and held for naught. * * *'
without this charge. That the Plaintiff was harmed by this erroneous instruction is beyond controversy.
We are presented with an appeal by the doctor and one by the hospital from the order granting a new trial. These appeals have been consolidated and are here discussed together.
Upon appeals from orders granting new trials, we are limited to a consideration of the grounds specified by the trial judge. Sections 59.06(1), 59.07(4) Fla.Stat., F.S.A., Leonetti v. Boone, Fla.1954, 75 So.2d 551.
The authority of a non-presiding successor-judge to rule upon a motion for a new trial is clear. Leibovit v. Garfunkel, 68 Fla. 463, 67 So. 98, Wohlfiel v. Morris, Fla.App.1960, 122 So.2d 235....
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