Hernandez v. Charles E. Virgin, M.D., P.A., 85-1083

• Decision Date: 14 April 1987
• Docket Number: No. 85-1083,85-1083
• Citation: 505 So.2d 1369,12 Fla. L. Weekly 1031
• Parties: 12 Fla. L. Weekly 1031 Rene HERNANDEZ and Maria B. Hernandez, his wife, as natural and legal guardians of Rene A. Hernandez, Incompetent, Appellants, v. CHARLES E. VIRGIN, M.D., P.A., John C. Nordt, III, M.D. and Leonard A. Roudner, M.D., Appellees.
• Court: Florida District Court of Appeals

Page 1369

505 So.2d 1369

12 Fla. L. Weekly 1031

Rene HERNANDEZ and Maria B. Hernandez, his wife, as natural and legal guardians of Rene A. Hernandez, Incompetent, Appellants, v. CHARLES E. VIRGIN, M.D., P.A., John C. Nordt, III, M.D. and Leonard A. Roudner, M.D., Appellees.

No. 85-1083.

District Court of Appeal of Florida Third District.

April 14, 1987.

Rehearing Denied May 19, 1987.

Kurzban, Kurzban, Weinger & Holtsberg and Steven M. Weinger, Miami, for appellants.

Wicker, Smith, Blomqvist, Tutan, O'Hara, McCoy, Graham & Lane and Shelley H. Leinicke, Miami, for appellees Charles E. Virgin, M.D., P.A. and John C. Nordt, III, M.D. Kubicki, Bradley, Draper, Gallagher & McGrane and Betsy E. Gallagher, Miami, for appellee Leonard A. Roudner, M.D.

Before HUBBART, BASKIN and FERGUSON, JJ.

FERGUSON, Judge.

This medical malpractice action is based on alleged acts of several health care providers, in the treatment of a trauma victim, which left the victim severely brain-damaged.

One of several issues presented in this appeal is that an unrecorded communication between the judge and a deliberating jury which occurred in the jury room and outside the presence of counsel was reversible error. We agree and reverse.

Although an ex parte communication between a judge and a deliberating jury is not per se reversible error in a civil case, reversal is required where a complaining party shows specific prejudice or where, owing to the nature of the ex parte communication, the reviewing court is unable to determine whether the action was actually harmless. Life from the Sea v. Levy Inc., 502 So.2d 473 (Fla. 3d DCA 1987), and cases collected therein. Specific prejudice will be presumed as a matter of law where a trial judge, without permission of the parties, enters a room with a deliberating jury for an ex parte "off-the-record" communication even if the purpose of the communication is purportedly, as it was here, unrelated to the issues in the case.

Since the case must be retried, we address the most serious of several other errors committed in the course of the proceedings.

The testimony of two anesthesiologists as to the standard of care which should have been exercised by an orthopedic surgeon in the operating room, after a life-threatening emergency arose, should not have been excluded. A health care provider may possess sufficient training, experience and knowledge to provide expert testimony as to an acceptable standard of care even though his medical specialty is different. Chenoweth v. Kemp, 396 So.2d 1122 (Fla.1981).

A memorandum written by one of the defendant physicians to a codefendant physician, based on statements of other unidentified persons, which explained the operating room activities while the patient was in acute distress and effectively assigned fault to a third physician, was not admissible as an admission against self-interest, section 90.803(18), Florida Statutes (1985), but could be used for impeachment purposes at trial. Section 90.608(1)(a), Florida Statutes (1985), provides that prior statements by the witness which are inconsistent with his trial testimony may be introduced to attack his credibility. Prior to the testimony of the author of the memorandum, the trial court ruled that it would not allow the written and signed statement for any purpose, including impeachment. A prior written statement which is inconsistent with trial...