Hernandez v. Clinica Pasteur, Inc., 73--31

• Decision Date: 30 April 1974
• Docket Number: No. 73--31,73--31
• Citation: 293 So.2d 747
• Parties: Maria HERNANDEZ, Individually and as Administratrix of the Estate of Pablo Hernandez, Appellant, v. CLINICA PASTEUR, INC., a Florida corporation, et al., Appellees.
• Court: Florida District Court of Appeals

Page 747

293 So.2d 747

Maria HERNANDEZ, Individually and as Administratrix of the Estate of Pablo Hernandez, Appellant, v. CLINICA PASTEUR, INC., a Florida corporation, et al., Appellees.

No. 73--31.

District Court of Appeal of Florida, Third District.

April 30, 1974.

Rehearing Denied May 21, 1974.

Horton & Perse and Arnold Ginsberg, Strauss & McCormick, Miami, for appellant.

Podhurst, Orseck & Parks, Fuller, Brumer, Moss & Cohen, Miami, for appellees.

Before PEARSON, CARROLL and HENDRY, JJ.

PEARSON, Judge.

The appellant was the plaintiff in the trial court where she brought an action for malpractice against the appellees alleging that her husband died as a result of the appellees' negligence. The jury awarded her a verdict in the sum of $15,000. After the verdict was returned, the defendants-appellees moved for a final judgment in accordance with their prior motion for a directed verdict. The motion for directed verdict was granted and final judgment was entered for the defendants. This appeal is from that judgment. ¹ We reverse upon a holding that proximate cause was an issue properly submitted to the jury and that the trial court erred when it granted the motion upon a holding that '. . . the Plaintiff failed to establish by appropriate testimony that any act of the Defendants proximately contributed to the death of PABLO HERNANDEZ as a matter of law'.

Appellant's sixty-one year old husband died at Hialeah Hospital, a victim of acute myocardial infarction. The plaintiff-widow, and administratrix of decedent's estate, brought this action for damages alleging medical malpractice by the defendant clinic. The trial was before a jury, and the following facts and testimony were presented.

On the evening before he died, the decedent came home from work looking place and not feeling well. Later, a neighbor drove him to the defendant clinic, where he was attended by Dr. Bueno, an unlicensed resident. Dr. Bueno called defendant, Dr. Alpizar, the supervising physician, and told him decedent was suffering from chest and stomach pains supposedly caused by gastric distress. Apparently, a medicine was prescribed for nervousness. Decedent's blood pressure was taken and found to be a little above normal, and Dr. Bueno took decedent's pulse, but did not record it. Dr. Bueno did not administer an electrocardiogram. Decedent was advised to go home and do exercises, and that nothing was wrong.

The decedent did exercises when he arrived home and went to bed. During the night decedent, suffering from severe chest pains and pain radiating into his left arm and neck, was taken to Hialeah Hospital. A resident there took an eletrocardiogram and then called the cardiologist on duty, who ordered standard emergency drugs for myocardial infarction. The cardiologist, Dr. Gersing, was called again about a half hour later, and when he arrived, the decedent was dead.

At trial, Dr. Gersing was asked a hypothetical question regarding professional conduct. Dr. Gersing testified that 'probably and possibly' decedent would have had a better chance to live if Dr. Gersing's recommended treatment had been administered initially. He further testified that the exercise the decedent was directed to take would increase the damage to a patient suffering from a myocardial infarction. During trial, defendants moved for a directed verdict at the close of plaintiff's case and at the close of all the evidence, claiming that plaintiff never proved that the deceased could have been saved, regardless of what was done. The trial court reserved ruling on the motion, and the jury returned a verdict for plaintiff. Defendants moved for judgment in accordance with prior motion for directed verdict. The motion was granted, and final judgment was entered for defendants.

The appellant relies for reversal upon the holding of the Supreme Court of Florida in Atkins v. Humes, Fla.1959, 110 So.2d 663. The Atkins case involved an action brought for medical malpractice in which the District Court of Appeal, Second District, affirmed a summary judgment against a physician charged with negligence in the treatment of a minor for a fracture of the elbow. In quashing the opinion of the District Court of Appeal, the Supreme Court held:

'The fact that '(n)o expert testified that the sore and contracture resulted from improper treatment', as stated by the District Court of Appeal in its opinion, is not decisive; in fact, many courts hold that it is improper for an expert to testify that the alleged malpractice Did occasion the result complained of, as distinguished from expert testimony that the alleged malpractice Could occasion the result. See DeGroot v. Winter, 261 Mich. 660, 247 N.W. 69, in which the court said: '* * * when a result could have been occasioned by one of two or more causes, the ultimate fact of which cause occasioned the result is for determination by the jury, and a medical expert may not, in case of conflicting evidence, invade the province of the jury and testify that the result was in fact occasioned by one cause only.' Cf. North v. State, Fla.1953, 65 So.2d 77.'

We consider the cited decision controlling on this appeal.

The appellees suggest that such is not the case because the basis of the Atkins opinion is the premise that under certain limited circumstances expert opinion as to causal relationships between the medical malpractice and the jury is not required. We think this distinction is unpersuasive because the Supreme Court expressly held:

'Even in those cases in which some expert testimony may be...