Kenyon v. Miller
Citation | 756 So.2d 133 |
Decision Date | 01 March 2000 |
Docket Number | No. 3D98-3204.,3D98-3204. |
Parties | Norman KENYON, M.D., Appellant, v. Wilma MILLER, Appellee. |
Court | Court of Appeal of Florida (US) |
Burt E. Redlus, Miami; Cooper & Wolfe, P.A. and Marc Cooper, and Barbara A. Silverman, Miami, for appellant.
Wetherington, Klein & Hubbart and Phillip A. Hubbart, Miami; Tralins and Associates and Myles J. Tralins, Miami, for appellee.
Before GODERICH, GREEN, and RAMIREZ, JJ.
This is an appeal from a final judgment, following a jury verdict in favor of the appellee, Wilma Miller ("Miller"), in a medical malpractice action against the appellant, Norman Kenyon, M.D. ("Dr. Kenyon"). Because we find that it was harmful error for the trial court to give the jury a res ipsa loquitur instruction, in this case, we reverse and remand for a new trial.
Dr. Kenyon operated on Miller to repair an incisional hernia resulting from a previous hysterectomy. In making the repair, Dr. Kenyon utilized a surgical mesh which is intended to incorporate with the body tissue, adding additional support to the hernia's closure site. A known complication of this procedure is that the mesh may become infected, not incorporate into the tissue, and require additional surgery to remove the infected mesh. Miller developed such an infection and Dr. Kenyon performed a second surgery to remove the infected portion of the mesh. Approximately a year later, the infection recurred and Miller had to undergo a third surgery, which was performed by Dr. Kenyon's partner, Dr. Tershakovec. Dr. Tershakovec removed additional infected mesh, as well as some sutures and staples that were used to attach the mesh. Miller has since healed and has had no further complaints.
Miller brought this medical malpractice action against Dr. Kenyon claiming that the doctor's failure to remove all of the mesh that had originally been placed in her constituted negligence. In fact, Miller's expert, Dr. Esterkyn, testified that, during the second surgery, Dr. Kenyon was negligent in not removing all the mesh that he had originally placed in Miller. Specifically, Dr. Esterkyn testified:
Conversely, Dr. Kenyon testified that he had cleaned and removed all of the unincorporated mesh, and to remove anything further would have been inappropriate. Similarly, Dr. Tershakovec testified that a doctor can only remove unincorporated mesh, because the removal of incorporated mesh would require a doctor to chisel the mesh out of the tissue, thereby causing the body tissue damage. Moreover, Dr. Kenyon's expert, Dr. Moylan, testified:
Despite this clearly conflicting expert testimony, during the charge conference, Miller's counsel requested that Florida Standard Jury Instruction (Civil) 4.6 (the res ipsa loquitor instruction), be read to the jury.1 Dr. Kenyon's counsel objected to the use of the res ipsa instruction. Over objection, the trial court allowed the instruction. As a result, during closing argument, Miller's counsel argued that expert testimony in this case was unnecessary because the negligence here essentially spoke for itself. Thereafter, the jury was charged:
If you find that the circumstances of the occurrence were such that in the ordinary course of events it would not have happened in the absence of negligence and that the instrumentality causing an injury was in [the] exclusive control of the Defendant at the time it caused the injury, you may infer that Defendant, Norman Kenyon, M.D., was negligent, unless taking into consideration all of the evidence in this case you can conclude that the occurrence was not due to any negligence on the part of the Defendant.
Dr. Kenyon's counsel renewed his objection to the instruction.
The jury returned a verdict in favor of Miller in the amount of $150,000. Dr. Kenyon moved for a new trial on grounds, among others, that the trial court erred in giving the res ipsa loquitur instruction. The motion for new trial was ultimately denied. This appeal followed.
The key issue for the jury's determination in this case was whether Dr. Kenyon exercised reasonable care during Miller's second surgery by removing only the unincorporated and/or infected mesh, or whether he was negligent in failing to remove all of the mesh that he had originally put in during the first surgery. Both sides presented evidence which explained how Miller's injury occurred. Moreover, the expert testimony regarding reasonable care was directly conflicting. Thus, the issue of whether Dr. Kenyon fell below the standard of care and was therefore negligent, should have been left to the jury based upon their assessment of the credibility of the expert witnesses.
Instead, the trial court's res ipsa instruction improperly permitted the jury to disregard the conflicting expert testimony and infer negligence solely on the facts that all of the mesh in Miller's body was not removed during the...
To continue reading
Request your trial-
In re Std. Jury Instructions in Civil Cases -- Report No. 09-01
...is given, the court must make a finding that the foreign body is one that meets the statutory definition. See Kenyon v. Miller, 756 So.2d 133 (Fla. 3d DCA 2000).d. Failure to make or maintain records: [Negligence is the failure to use reasonable care.] The law requires (defendant) as a lice......
-
In re Standard Jury Instructions in Civil Case—-Report Number
...is given, the court must make a finding that the foreign body is one that meets the statutory definition. See Kenyon v. Miller, 756 So.2d 133 (Fla.23d DCA 2000).d. Failure to make or maintain records: [Negligence is the failure to use reasonable care.] The law requires (defendant) as a lice......
-
In re Standard Jury Instructions in Civil Cases—Report No. 15–01
...is given, the court must make a finding that the foreign body is one that meets the statutory definition. See Kenyon v. Miller, 756 So.2d 133 (Fla. 3d DCA 2000).d. Failure tomake or maintain evidence or keep a records:[Negligence is the failure to use reasonable care.] The law requires (def......
-
Dockswell v. Bethesda Mem'l Hosp., Inc.
...presumption arising from section 766.102(3)(b). We have jurisdiction based on express and direct conflict with Kenyon v. Miller , 756 So.2d 133 (Fla. 3d DCA 2000). See art. V, § 3(b)(3), Fla. Const.After analyzing the statute and relevant case law, we conclude, consistent with the analysis ......
-
Negligence cases
...requisite elements and only after the plaintiff carries this burden of proof may a court supply the inference. Kenyon v. Miller , 756 So.2d 133, 136 (Fla. 3d DCA 2000). 3. Valcin Doctrine: The Valcin doctrine, as it is now called, is applied when, through the defendant’s negligence, essenti......