Johansen v. Vuocolo

• Decision Date: 31 January 2013
• Docket Number: No. 4D11–2148.,4D11–2148.
• Citation: 125 So.3d 197
• Court: Florida District Court of Appeals
• Parties: Yvette JOHANSEN has Personal Representative of the Estate of George Johansen, Appellant, v. Philip S. VUOCOLO, M.D. and Heart & Family Institute Of Port St. Lucie, Inc., Appellees.

125 So.3d 197

Yvette JOHANSEN has Personal Representative of the Estate of George Johansen, Appellant,

v.Philip S. VUOCOLO, M.D. and Heart & Family Institute Of Port St. Lucie, Inc., Appellees.

No. 4D11–2148.

District Court of Appeal of Florida,

Fourth District.

Jan. 31, 2013.

Rebecca Mercier Vargas and Jane Kreusler–Walsh of Kreusler–Walsh, Compiani & Vargas, P.A., West Palm Beach, and Brent L. Probinsky of Brent L. Probinsky, P.A., Sarasota, for appellant.

Shelley H. Leinicke of Wicker, Smith, O'Hara, McCoy & Ford, P.A., Fort Lauderdale, for appellees.

TAYLOR, J.

In this appeal from a final judgment entered on a defense verdict in a medical malpractice case, appellant/plaintiff Yvette Johansen, as Personal Representative of the Estate of George Johansen (Estate), seeks a new trial, arguing that the trial court reversibly erred in bifurcating her claims of medical malpractice and negligent hiring and retention of the primary surgeon from her claims of negligent hiring and retention of the assistant surgeon. We affirm, because the trial court did not abuse its discretion in ordering bifurcation of appellant's claims.

Dr. Philip Vuocolo, a general and vascular surgeon employed by the Heart and Family Institute of Port St. Lucie (Institute), surgically removed a part of seventy-eight year old George Johansen's lung after finding a suspicious lesion on his left lung. Dr. Robert Norton, a general surgeon also employed by the Institute, assisted Dr. Vuocolo in the lobectomy and post-surgical care of Mr. Johansen. Mr. Johansen developed complications after the operation and had to undergo additional procedures after he experienced excessive blood loss. He died twenty-eight days after the surgery.

The Estate filed a claim for medical malpractice against Dr. Vuocolo and a claim against the Institute for vicarious liability for the malpractice of Dr. Vuocolo. The Estate also filed a claim against the Institute for the negligent hiring and retention of Dr. Vuocolo. After filing the complaint, and after the statute of limitations period had run, the Estate discovered that Dr. Norton, the assistant surgeon, had an extensive history of medical malpractice.¹ Although the statute of limitations precluded the Estate from filing suit against Dr. Norton individually, the trial court ruled that the negligent hiring complaint against the Institute was sufficiently pled so as to include any negligent acts Dr. Norton may have committed while caring for the decedent.

Concerned that Dr. Norton's extensive malpractice history would have a prejudicial effect on the jury, the defendants filed multiple motions to bifurcate the medical malpractice claims from the negligent hiring and retention claims. The trial court agreed that Dr. Norton's malpractice history would prejudice a jury in the medical malpractice action against Dr. Vuocolo and ultimately ordered two separate trials. Accordingly, the Estate's claims based on the medical malpractice and negligent hiring of Dr. Vuocolo would be tried separately from the claims based on the medical malpractice and negligent hiring of Dr. Norton. The order stated:

The medical malpractice action against PHILIP S. VUOCOLO, MD and HEART AND FAMILY INSTITUTE OF PORT ST. LUCIE, INC. shall be tried first. Under no circumstances in the medical malpractice action against PHILIP S. VUOCOLO, MD and HEART AND FAMILY INSTITUTE OF PORT ST. LUCIE, INC., can the Plaintiff introduce evidence concerning Dr. Norton's alleged malpractice claim history.

Then, only if the trier of fact determines that PHILIP S. VUOCOLO, MD and HEART AND FAMILY INSTITUTE OF PORT ST. LUCIE, INC are not negligent in the first trial, can a second trial proceed against HEART AND FAMILY INSTITUTE OF PORT ST. LUCIE, INC., for medical malpractice based upon vicarious liability for, non-party, Dr. Norton's actions.

The case proceeded to trial, and the jury entered a verdict for the defense; it found that Dr. Vuocolo did not breach the standard of good medical care and that his actions were not the proximate cause of Mr. Johansen's death. Because of this finding, the jury was not required to determine whether the Institute had negligently hired Dr. Vuocolo.² This appeal followed.

A trial court's decision to bifurcate claims and issues is reviewed for an abuse of discretion. See Valliappan v. Cruz, 917 So.2d 257, 259 (Fla. 4th DCA 2005); Roseman v. Town Square Ass'n, Inc., 810 So.2d 516, 520 (Fla. 4th DCA 2001). Florida Rule of Civil Procedure 1.270(b) governs the bifurcation of trials and permits “[t]he court in furtherance of convenience or to avoid prejudice [to] order a separate trial of any claim ... or of any separate issue or of any number of claims ... or issues.” Fla. R. Civ. P. 1.270(b).

Ordinarily, claims or issues that are interrelated and intertwined should not be bifurcated. See, e.g., Rooss v. Mayberry, 866 So.2d 174, 176 (Fla. 5th DCA 2004) (holding that a unified trial, rather than bifurcated action as to liability and damages issues, was required to affect substantial justice in medical malpractice action brought by a German national); Yost v. Am. Nat'l Bank, 570 So.2d 350, 352–53 (Fla. 1st DCA 1990) (concluding that in an action brought by lender to foreclose promissory note, defendants' compulsory counterclaims were improperly severed for separate trial); Travelers Express, Inc. v. Acosta, 397 So.2d 733, 737 (Fla. 3d DCA 1981) (noting that a severance for separate trial is within the discretion of the trial court, but that separate trials are appropriate only when a joint trial may prejudice a party or cause inconvenience).

As we pointed out in Roseman, “the law is well settled that bifurcation is subject to the sound discretion of the trial court,” and “bifurcation is generally proper absent a specific threat of inconsistent verdicts or prejudice to a party.” 810...