Gordon v. St. Mary's Hospital, Inc., 73--294

• Decision Date: 29 November 1974
• Docket Number: No. 73--294,73--294
• Citation: 305 So.2d 234
• Court: Florida District Court of Appeals
• Parties: Linda GORDON, Appellant, v. ST. MARY'S HOSPITAL, INC., a Florida corporation, and General Accident Fire& Life Assurance Corporation, a corporation, Appellees.

Page 234

305 So.2d 234

Linda GORDON, Appellant, v. ST. MARY'S HOSPITAL, INC., a Florida corporation, and General Accident Fire& Life Assurance Corporation, a corporation, Appellees.

No. 73--294.

District Court of Appeal of Florida, Fourth District.

Nov. 29, 1974.

Rehearing Denied Jan. 3, 1975.

Edward A. Perse, Horton & Perse and Beckham & McAliley, Miami, for appellant.

Kirk Sullivan, Adams, Sullivan & Coogler, West Palm Beach, for appellees.

KIRKLAND, THOMAS E., Associate Judge.

Appellant, Linda Gordon, Plaintiff below in a hospital negligence action, seeks review of an adverse Order vacating a jury verdict and Final Judgment rendered in her favor, and granting Appellee Defendant hospital a new trial.

Appellant fell through a plate glass door, seriously injuring her left knee. This injury necessitated a series of operations, culminating in an operation in Appellee's hospital to remove Appellant's kneecap. As in the previous operations, Appellant was given a general anesthetic and afterwards, medication for pain. The day after this operation, Appellant, who had been instructed by her doctor to be up and about as soon as possible, rang for a nurse to assist her to the bathroom. A student nurse of three months experience, Miss Walleah Walker, responded. She helped Appellant to the bathroom, helped her to seat herself on the toilet and, telling Appellant to call her when ready to leave, closed the bathroom door and stood outside. When Appellant had finished, she pulled herself up to a standing position and called to Miss Walker. The nurse opened the door and was handing Appellant her crutches when Appellant suddently felt dizzy, fainted and fell to the floor landing on her buttocks and fracturing her sacrum.

The first ground for granting the new trial was that it was error to charge the jury on the doctrine of last clear chance.

This case was tried prior to Hoffman v. Jones, Fla.1973, 280 So.2d 431 and was submitted to the jury with a contributory negligence charge. The last clear change charge was requested by Plaintiff to avoid the complete bar of contributory negligence. However, there was little, if any, evidence of negligence on the part of the Plaintiff, so the giving of the charge, if error, was harmless and a new trial cannot be granted for this reason. See, Connolly v. Steakley, Fla.1967, 197 So.2d 524. At the charge conference, the attorneys for both parties agreed on the giving of this charge and no exception was taken by the...