Hickman v. Employers Fire Ins. Co., 73--1330

• Citation: 311 So.2d 778
• Decision Date: 04 April 1975
• Docket Number: No. 73--1330,73--1330
• Parties: Hazel HICKMAN and Wade G. Hickman, her husband, Appellants, v. The EMPLOYERS' FIRE INSURANCE COMPANY et al., Appellees.
• Court: Court of Appeal of Florida (US)

Page 778

311 So.2d 778

Hazel HICKMAN and Wade G. Hickman, her husband, Appellants, v. The EMPLOYERS' FIRE INSURANCE COMPANY et al., Appellees.

No. 73--1330.

District Court of Appeal of Florida, Fourth District.

April 4, 1975.

Rehearing Denied May 6, 1975.

Daniel H. James, Hamilton, James, Merkle & Young, West Palm Beach, for appellants.

Edna L. Caruso, Howell, Kirby, Montgomery, D'Aiuto, Dean & Hallowes, West Palm Beach, for appellees Ramos and Employers' Fire Ins. Co.

George S. Okell, Jr., West Palm Beach, for appellees Continental Ins. Co. and Southwestern Palm Beach County Public Hospital District d/b/a Glades General Hospital.

WALDEN, Judge.

Plaintiffs brought a malpractice suit against Dr. Baker, a surgeon, and Dr. Ramos, a hospital pathologist. The gravamen of the suit against Dr. Baker was that he had improperly excised, or damaged, a portion of Mrs. Hickman's bile duct while doing a routine gall bladder removal. The suit against Dr. Ramos charged that he, as the examining pathologist required to check the excised tissue, had negligently failed to notice the attached bile duct when examining the removed gall bladder. Dr. Ramos pled not guilty and testified the bile duct was not attached to the gall bladder when he examined it. He testified that the only tissue delivered to him was the diseased gall bladder and nothing more.

The jury returned a verdict against Dr. Baker and exonerated Dr. Ramos. The plaintiff appeals the Ramos verdict, claiming solely that an improper jury instruction had been given. We disagree and affirm.

The questioned instruction was as follows:

'Since the science of medicine is not an exact science, a physician is not to be held liable for an honest error in judgment. He is to be allowed a wide range in the exercise of his judgment and discretion and in order to hold him liable, it must be shown that the course he pursued was clearly against the course recognized as correct by his profession.'

Plaintiff claims the instruction is erroneous under the facts of this case because there was no variety of courses available to Dr. Ramos from which he might medically make a choice. This is too fine a distinction. Many things could combine to show a course of action pursued by Dr. Ramos, for example, the amount of time from operation to examination, the procedures used in the pathology lab for identification and preservation, and, in fact, the evidence showed Dr. Ramos examined the tissue twice--upon request of Dr. Baker--a procedure that evidenced a course of action he pursued in making sure of his examination. The subject instruction has been approved in Potock v. Turek, 227 So.2d 724 (Fla.App.3rd 1969); See Dillmann v. Hellman, 283 So.2d 388 (Fla.App.2nd 1973).

In addition to the challenged instruction, the court gave the following:

'Now this is an action of damages allegedly due to negligence on the part of a physician or physicians. In order for plaintiffs to recover in such an action, it must be proved to you by a greater weight of the evidence that the physician in question, in the performance of his surgical or pathological duties to the plaintiff, Hazel Hickman, either:

'(1) Did some particular thing or things that physicians of ordinary skill, care and diligence, practicing at the same time and in the same general area, and in the same specialty, would not have done in like or similar circumstances; or

'(2) Fail to do some particular thing or things that a physician of ordinary skill, care and diligence, practicing at the same time and in the same general...