Holman By and Through Holman v. Goldschmidt

• Decision Date: 11 October 1989
• Docket Number: No. 87-1492,87-1492
• Citation: 14 Fla. L. Weekly 2410,550 So.2d 499
• Parties: 14 Fla. L. Weekly 2410 Jerri Taletha HOLMAN, a minor, By and Through her next friends and guardians, Jeff Henry HOLMAN and Sandra Gail Holman, Appellants, v. Mark N. GOLDSCHMIDT, M.D., Appellee.
• Court: Florida District Court of Appeals

Page 499

550 So.2d 499

14 Fla. L. Weekly 2410

Jerri Taletha HOLMAN, a minor, By and Through her next friends and guardians, Jeff Henry HOLMAN and Sandra Gail Holman, Appellants, v. Mark N. GOLDSCHMIDT, M.D., Appellee.

No. 87-1492.

District Court of Appeal of Florida,

First District.

Oct. 11, 1989.

Rehearing Denied Nov. 16, 1989.

Eugene Loftin, Jacksonville, for appellants.

Thomas S. Edwards, Jr. and Charles C. Howell, III, Jacksonville, for appellee.

ZEHMER, Judge.

Jerri Taletha Holman and her parents, Jeff and Sandra Holman, appeal a final judgment entered in this medical malpractice action pursuant to a jury verdict for Mark N. Goldschmidt, M.D. We reverse and remand upon the holdings that the trial court erred in ruling that there was no triable issue regarding Dr. Goldschmidt's liability for the negligent acts of Dr. Soud, if any, and that the court erred in refusing to give the requested standard jury instruction 5.1(b) on concurring causes. We find no merit in appellant's two remaining points.

On August 12, 1983, Jeff and Sandra Holman took Taletha, their six-year old daughter, to Dr. Goldschmidt's office because she was experiencing fever, vomiting, loss of appetite, and abdominal pains. Dr. Goldschmidt, a pediatrician, diagnosed Taletha's condition as an intestinal virus. On August 14, 1983, Mrs. Holman called Dr. Goldschmidt's office because Taletha's condition had deteriorated. Dr. Goldschmidt was off that weekend and Dr. Gary Soud, who was "covering" for Goldschmidt, returned the Holmans' call. The substance of this conversation is disputed. Dr. Soud testified that he was told that Taletha was not experiencing any abdominal pain, whereas Mrs. Holman testified that she told Dr. Soud that Taletha still was experiencing abdominal pain. The testimony was undisputed that Dr. Soud advised the Holmans to continue to give Taletha clear liquids and requested them to call him back if Taletha did not urinate within the following few hours. Taletha did urinate and Mrs. Holman did not call Dr. Soud back that evening. The severity of Taletha's condition over the next two days is a matter of some dispute. On August 16, 1983, however, Mrs. Holman called Dr. Goldschmidt's office and stated that Taletha continued to exhibit the same symptoms, and in response she was given an appointment for August 17. Later on August 16 the Holmans took Taletha to a hospital emergency room where doctors determined that she was suffering severe peritonitis as the result of a perforated appendix and immediately performed surgery. Taletha's surgeon testified that he found two quarts of pus in her pelvic area and that she would have adhesions in her abdomen for life.

Subsequently, the Holmans brought this malpractice suit against Dr. Goldschmidt alleging that he was negligent in his care and treatment of Taletha. At trial, Dr. Goldschmidt disputed the Holman's version of the history and descriptions of Taletha's condition given to him and Dr. Soud during their several conversations. The jury returned a verdict for Dr. Goldschmidt. Each of the issues the Holmans raise on this appeal stems from alleged erroneous rulings made during the trial.

I.

First, appellants assert that the court erred in not permitting the jury to consider whether Dr. Goldschmidt was responsible for the acts of Dr. Soud on August 14, 1983. The court made the disputed ruling at the charge conference, following denial of appellants' request to have the jury instructed that Dr. Goldschmidt "is responsible for any negligence of his agent, Dr. Gary Soud, on August 14, 1983, in providing health care services for Jerri Taletha Holman" (emphasis added). The court ruled that appellants failed to plead or present any evidence of an agency relationship between Drs. Goldschmidt and Soud and denied appellants' motion to so amend the pleadings to conform to the evidence. The court precluded the jury from considering whether Dr. Goldschmidt should be held liable for Dr. Soud's actions and stated that "the only issue in the case" was whether "Dr. Goldschmidt negligently failed to diagnose the child." Appellee contends that the trial court correctly refused to submit this issue to the jury because the complaint did not name Dr. Soud as Dr. Goldschmidt's agent, did not allege that Dr. Soud negligently failed to advise the Holmans that Taletha was in need of further medical treatment, and did not allege that Dr. Goldschmidt was otherwise legally responsible for any negligence on the part of Dr. Soud.

A.

No Florida court decision appears to have addressed whether the agency of one acting for the principal must be explicitly pleaded in a tort case, but this pleading issue has been addressed in the context of a contract case. The rule in Florida is that one suing on a contract made for the defendant by his agent need not allege the agency in the complaint; it is sufficient for the plaintiff to allege the legal effect of the agent's action on the defendant's legal liability. Maestrelli v. Arrigoni, Inc., 476 So.2d 756 (Fla. 5th DCA 1985). The fifth district explained in Maestrelli that the issue of a principal's liability for the acts of his agent is not a "theory of liability" in the sense of a cause of action that must be pleaded to invoke the trial court's subject matter jurisdiction and meet due process requirements.

Appellee has not offered, and we cannot perceive of, any rationale for applying a different rule in this case because it is a tort, rather than a contract, action. On the contrary, the general consensus of decisions from other jurisdictions that have considered this pleading issue in the context of tort cases is that a complaint in an action against a principal for the tort of his agent need not disclose that the act complained of was not committed by the principal himself but was the act of the agent. See Annot., 4 A.L.R.2d 292 (1949) (generally stating that a plaintiff's pleading in such an action is sufficient if it charges misconduct against the principal defendant personally without mention of the servant or agent).

We hold that the allegations in paragraphs 7, 14 and 15 of the complaint ¹ were sufficient to allow appellants to present evidence of Dr. Soud's actions on August 14 in responding to the call to Dr. Goldschmidt as evidence of negligence in fulfilling the latter's continuing duty of care in respect to the treatment of Taletha. The complaint alleges that Dr. Goldschmidt undertook to diagnose and treat Taletha for abdominal complaints on August 12, when she was first presented to his office. The allegations of the complaint are sufficient to give notice that pursuant to this undertaking the Holmans were looking to Dr. Goldschmidt, and not others unknown to them, to provide follow-up care during the ensuing days. The allegations also give notice that because Taletha was not doing well after a day or so, the Holmans called Dr. Goldschmidt's office on August 14 and received instructions for continued treatment from someone unnamed in the complaint, but who must have been either Dr. Goldschmidt himself or someone authorized to act for him in the care of his patients during his absence, such as Dr. Soud was shown to be. Since it was not necessary as a matter of pleading to name the person who responded on Dr. Goldschmidt's behalf, these allegations were sufficient to permit the court to receive evidence proving that, as a matter of fact, someone else was acting for Dr. Goldschmidt at the time of the Holmans' telephone call on August 14 and that this person did so negligently in the manner alleged. See cases cited in the annotation at 4 A.L.R.2d 292 and the 1988 supplement thereto. ²

B.

Reversal on this issue is further buttressed by our conclusion that the parties knowingly tried the issue of Dr. Soud's negligent acts on behalf of Dr. Goldschmidt. Despite the lack of identification of Dr. Soud in the complaint and the lack of specific allegations that Dr. Soud was acting for Dr. Goldschmidt on August 14, and despite the fact that no such issue was specifically identified in the pretrial order, this issue was tried by both parties without any basis for surprise to the defendant at trial and without any hint of "sandbagging" or playing "gotcha" by the plaintiff. The following statement by Dr. Goldschmidt's attorney at the Holmans' pretrial discovery deposition of Dr. Soud demonstrates the defendant's understanding of the issues raised by the pleadings and belies any notion that appellee was unfairly surprised by appellants' attempt to have the jury consider this issue at trial:

Let me just object at this point. Number one, your expert [Dr. Abramson] has already testified this gentleman [Dr. Soud] was operating as an agent of my doctor and was working with my doctor. And I have the right to speak to people that are working with him. And, according to your expert, that's the situation.

If you all want to drop any allegation pertaining to my doctor being responsible for this gentleman's alleged negligence, then we'll cross that bridge--

(Emphasis added) (Soud deposition at p. 9).

Consistent with this expression of the issues, Dr. Goldschmidt's counsel did not object at trial to appellants' presentation of Dr. Abramson's deposition testimony wherein Abramson testified that Dr. Soud deviated from the appropriate standard of care in not instructing appellants on August 14 to immediately take Taletha to him or to the hospital for examination (R. 245). Likewise, appellee's counsel did not object to Dr. Abramson's deposition testimony that appellee was responsible for Dr. Soud's negligence (R. 243). Appellee's own counsel elicited testimony from Dr. Soud that he and appellee had an arrangement whereby they would each take off one weekend a month and one-half day a week, and during their time off each doctor would cover for the other (R. 465-466); that the Holmans called appellee's office on August 14 and Dr. Soud returned that call because he was "co...