Hawkins v. Schofman

• Decision Date: 28 November 1967
• Docket Number: No. 66--515,66--515
• Citation: 204 So.2d 336
• Parties: Nellie Jo HAWKINS and Harold Eugene Hawkins, her husband, Appellants, v. Dr. M. A. SCHOFMAN, Appellee.
• Court: Florida District Court of Appeals

Page 336

204 So.2d 336

46 A.L.R.3d 270

Nellie Jo HAWKINS and Harold Eugene Hawkins, her husband, Appellants, v. Dr. M. A. SCHOFMAN, Appellee.

No. 66--515.

District Court of Appeal of Florida, Third District.

Nov. 28, 1967.

Rehearing Denied Dec. 19, 1967.

Podhurst & Orseck, Miami, Spence, Payne & Masington and J. B. Spence, Miami, for appellants.

Blackwell, Walker & Gray and James E. Tribble, Miami, for appellee.

Before CHARLES CARROLL, C.J., and BARKDULL and SWANN, JJ.

CHARLES CARROLL, Chief Judge.

The plaintiffs appeal an adverse judgment entered on a directed verdict for the defendant. Plaintiff Nellie Jo Hawkins was operated upon by the defendant, Dr. M. A. Schofman, for removal of a lymph node or nodule from the area of the posterior triangle on the right side of her neck. Following the operation she was left with a partial paralysis, manifested by a droop of her right shoulder and loss of function of the shoulder and arm such as normally may result from injury or damage to the spinal accessory nerve which lies in the area of the neck from which the nodule was removed.

At the conclusion of the presentation of evidence on behalf of the plaintiffs, the defendant moved for and was granted a directed verdict. In seeking reversal of the judgment entered thereon, appellants argue that the trial court committed error in excluding the testimony of Dr. McIntyre, a neurologist, offered to show the approved medical standard for the operation in question and a departure therefrom by the defendant and, further, that the evidence presented at the trial, without the testimony of Dr. McIntyre, was sufficient to establish a prima facie case.

We hold, as contended by appellants, that the trial court committed error in excluding the testimony of Dr. McIntyre. The plaintiff proffered the opinion testimony of Dr. McIntyre to the effect that the medically recognized standard in such an operation was to locate, isolate and safeguard the nerve in question before the removal of any tissue, and that in the performance of the operation the defendant doctor departed from such standard in a manner which could have caused or risked injury to the nerve by failing to make a sufficiently large incision to properly see and locate the nerve and by failing to use electro- stimulation to identify the nerve prior to removing any tissue; and that the injury to Mrs. Hawkins resulted therefrom.

The trial court held Dr. McIntyre was unqualified to give opinion testimony concerning the operative procedure involved here because he had had no personal experience in performing such an operation. Regarding his qualifications it was shown that Dr. McIntyre had received a degree as a medical doctor from Columbia University in 1944, had been a practicing physician for twenty-two years, had served in the filed of neurology at various named hospitals, was licensed to practice in Florida in 1952 and since had practiced in this state as a specialist in neurology and psychiatry, having acted as court appointed physician on occasions in Dade and Broward Counties; and Dr. McIntyre professed knowledge of the standard and procedure for an operation of the kind performed in this instance, through study thereof and observation including the witnessing of one performed a week previously.

The fact that Dr. McIntyre had not performed such an operation himself could have a bearing on the weight and credibility given to his testimony, ¹ but did not render him incompetent under the law not express an opinion as an expert in a case of this character in view of his medical training and professed knowledge of the standard and procedure for such an operation through study and observation. See Schley v. State, 48 Fla. 53, 37 So. 518; Copeland v. State, 58 Fla. 26, 50 So. 621; Foster v. Thornton, 125 Fla. 699, 170 So.2d 459, 463, and Harris v. Smith, 8 Cir.1967, 372 F.2d 806, 813--814.

The proposition that a medical doctor can be qualified by education and study to give opinion testimony regarding a medical matter as to which he may not have had personal experience was established by the Supreme Court of Florida in Copeland v. State, supra. There the court said (50 So. at 624):

'A physician as witness for the state was allowed, over the defendant's objection, to testify to the physical symptoms produced by strychnine poison, and to the exaggerated congested condition of the abdominal viscera of the deceased which he found to exist upon an autopsy made by him of her body shortly...