Holl v. Talcott, 64-220
| Decision Date | 02 February 1965 |
| Docket Number | No. 64-220,64-220 |
| Citation | 171 So.2d 412 |
| Parties | Ellen Morgan HOLL, an incompetent, by and through her husband and guardian, William E. Holl, individually, and Central Bank & Trust Co ., substituted guardian, Appellants, v. Leroy E. TALCOTT, Jr., Donald Andrus, George C. Austin and Victoria Hospital, Inc., Appellees. |
| Court | Florida District Court of Appeals |
Nichols, Gaither, Beckham, Colson & Spence and Alan R. Schwartz and Robert Orseck, Miami, for appellants .
Carey, Terry, Dwyer, Austin, Cole & Stephens, Miami, for Talcott and Andrus.
Blackwell, Walker & Gray and Sam Powers, Jr., Miami, for Austin.
Knight, Smith Underwood & Peters and Cecyl L. Pickle, Miami, for Victoria Hospital.
Before BARKDULL, C. J., and HORTON and HENDRY, JJ.
In this appeal, we are considering the propriety of the trial judge's order granting a summary judgment in defendants' favor, therefore, we must consider the facts in the light most favorable to the plaintiff. 1
Accordingly, we reproduce, in full, the statement of the case as found in plaintiff-appellants' brief: 2
'This is an appeal from a summary final judgment entered in favor of four defendants in a malpractice case. The case is a tragic one to say the least. On September 9, 1959, Ellen Morgan Holl, a 33-year old wife and mother of three minor children, was admitted to Victoria Hospital in Miami, Florida, for an ordinary hemorrhoidectomy and spot ligation of varicose veins on the left calf. The operation was performed early on the morning of September 10, 1959. On September 12, as she lay in her hospital bed, Mrs. Holl, the victim of a severe brain inflammation or encephalitis, went into a deep coma, from which she has not awakened to this day. From the morning of September 12, 1959, to the present Mrs. Holl has not spoken an intelligible word, nor left her bed, nor moved about under her own power. She has been reduced to the equivalent of a plant.
'This action was commenced by William E. Holl, as her guardian and husband. Named as defendants were Leroy E. Talcott, Jr. and Donald Andrus, the surgeons; George C. Austin, the anesthesiologist; and Victoria Hospital, Inc. After the institution of the action, extensive and detailed discovery proceedings were commenced. Indeed the record comprises over 1,500 pages and this is exclusive of a plethora of hospital records also before the court in the form of exhibits.
'Each of the defendants moved for summary judgment claiming that no departure from the standards of their profession were shown as a matter of law. In opposition to the motions for summary judgment, the plaintiffs interposed the affidavit of Dr. David J. Graubard, an eminently qualified New York physician, surgeon and expert. The defendants each then moved to strike the affidavit on the grounds of legal insufficiency. The motions to strike and motions for summary judgment simultaneously were granted, and summary final judgment was entered.
It is readily apparent that the propriety of the trial court's granting of the motions for summary judgment must turn upon a determination of the legal sufficiency of the affidavit of Dr. David Graubard, we reproduce it in full:
'BEFORE ME, the undersigned authority, personally appeared DR. DAVID J. GRAUBARD, who first being duly sworn and cautioned, deposes and says:
'1. That he is a duly licensed and practicing physician in the City of New York, County of New York and State of New York. That he is a member of the following Medical Associations: New York County Medical Society; Medical Society of the State of New York; American Medical Society; Industrial Medical Association; Association of American Railway Surgeons; Rudolf Virchow Medical Society; American Association for the Advancement of Science; New York Academy of Sciences; Member of the Health Royal Society of Great Britain; Certified Fellow of the International College of Surgeons; Diplomate of the International Board of Surgeons; Specialist credited by the State of New York in Workmen's Compensation cases in General and Traumatic Surgery, and received his formal education from the following educational institutions: University Bellevue Hospital and Medical College, New York City, 1932; Graduate in surgery--New York University Medical College, 1946.
'2. That he has examined the hospital records concerning the admission of ELLEN MORGAN HOLL to the Victoria Hospital from September 9, 1959, to October 1, 1959 and which were identified at the deposition of the hospital records custodian, Adele Alvarado.
'3. That he has examined the hospital records concerning the admission of ELLEN MORGAN HOLL in Jackson Memorial Hospital from October 1, 1959 to January 1, 1960 and which were identified at the deposition of the hospital records custodian, Vivian Perdomo.
'4. That he has reviewed and examined the depositions of Dr. George C. Austin, the anesthetist, and Dr. LeRoy E. Talcott, Jr., and Dr. Donald Andrus, the surgeons.
'5. That he has seen and examined ELLEN MORGAN HOLL this 10th day of May, 1963 at the Baptist Hospital, Miami, Florida.
'6. That based on his review of the aforesaid documentary evidence, he finds that Dr. LeRoy E. Talcott, Jr. and Dr. Donald Andrus:
'(a) Failed to notify and apprise ELLEN MORGAN HOLL of the risk incident to operative procedure contemplated by said surgeons;
'(b) Failed to obtain an adequate history from ELLEN MORGAN HOLL pre-operatively;
'(c) Failed to perform an adequate pre-operative examinations;
'(d) Failed to exercise reasonable care in following ELLEN MORGAN HOLL'S condition, signs and symptoms in the recovery room, and thereafter in her home;
'(e) Created a recto-vaginal fistula or failed to discover one if it did pre-exist either before or after the operation on September 10, 1959;
'(f) Failed to order and approve the special nurses engaged by the family of ELLEN MORGAN HOLL.
'(g) Failed to adequately, properly and sufficiently direct, instruct and supervise the activities of the special nurses caring for ELLEN MORGAN HOLL:
'(h) Failed to adequately investigate the history of ELLEN MORGAN HOLL set forth in the records in her prior hospital admissions and in the records of her prior treating doctors;
'(i) Ordered excessive drug dosages without proper testing of ELLEN MORGAN HOLL as to sensitivity to such excessive doses;
'(j) Failed in the post-operative care of ELLEN MORGAN HOLL to carefully heed the warnings and complaints of ELLEN MORGAN HOLL, along with her other signs and symptoms;
'(k) Failed to obtain and request adequate blood pressure readings;
'(1) Prescribed drug contra-indicated due to ELLEN MORGAN HOLL'S pre-operative history and post-operative complaints '(m) Failed to institute care and treatment to ELLEN MORGAN HOLL upon the onset of her signs and symptoms.
'7. That the foregoing actions on the part of LeRoy E. Talcott, Jr., and Donald Andrus narrated in paragraph 6 were not in accordance with the usual judgment, skill and care ordinarily required for the practice of medicine on the part of a surgeon or surgeons, and was not what a reasonable and prudent surgeon or surgeons would do in that the aforesaid acts narrated in paragraph 6 constituted negligence in any community in this county including Miami, Florida, during the times that ELLEN MORGAN HOLL was in Victoria Hospital, Inc.
'8. That based on his review of the aforesaid doucumentary evidence, he finds that the anesthetist, George C. Austin:
'(a) Failed to obtain an adequate history from the patient, ELLEN MORGAN HOLL, whom he was to administer the anesthetic to and upon whom he did in fact administer a spinal anesthetic, and failed to adequately, properly and sufficiently elicit information as to contra-indications for the use of spinal anesthetics.
'(b) Failed to perform a thorough and complete pre-anesthetic physical examination.
'(c) Used the wrong concentration of ponticane when he administered the spinal anesthetic to ELLEN MORGAN HOLL.
'(d) Failed to write down and properly record the signs and symptoms of ELLEN MORGAN HOLL in the hospital records at Victoria Hospital and failed to properly and adequately inform her treating physicians of her signs and symptoms as observed by him pre-operatively during the operation and post-operatively in the recovery room.
'(e) Failed to set up adequate safeguards for the sterilization of the anesthetic pack and tray he used in the administration of the anesthetic upon ELLEN MORGAN HOLL.
'(f) Relied on the actions of the hospital personnel and drug manufacturers rather than taking his own person precautions to see that the equipment, drugs and medications he used were properly sterilized and of such quality as to be fit for use upon ELLEN MORGAN HOLL.
'(g) Failed to adequately, properly and sufficiently inform ELLEN...
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Visingardi v. Tirone, s. 64-595
...of this doctor amounts to no more than a conclusion or speculation similar to the one discussed in the recent case of Holl v. Talcott, Fla.App.1965, 171 So.2d 412, involving the same doctor. The affidavit did not connect the cause of death to any specific negligence charged to the doctor. I......
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Holl v. Talcott
...was denied and the proffer of the affidavit refused. The District Court of Appeal, Third District, affirmed in an opinion published at 171 So.2d 412, and petitioners seek review here by certiorari. In this opinion the petitioners will be referred to as plaintiffs and the respondents as defe......
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Talcott v. Holl, 67--765
...sued through a guardian. The basic facts are disclosed in an opinion of this court which affirmed a summary judgment for the defendants (171 So.2d 412), and in the opinion of the Supreme Court which, on certiorari, quashed our affirmance of the summary judgment and remanded the cause for fu......
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Visingardi v. Tirone
...that in affirming the striking of Dr. Graubard's affidavit, the district court expressly relied upon its own decision in Holl v. Talcott, Fla.App.1965, 171 So.2d 412, which we subsequently quashed; Fla., 191 So.2d 40, filed June 1, 1966. In the latter opinion, we expressly held that the aff......