Mein, Joest & Hayes, M.D., P.A. v. Weiss, BR-119

• Decision Date: 01 December 1987
• Docket Number: No. BR-119,BR-119
• Parties: 12 Fla. L. Weekly 2698 MEIN, JOEST & HAYES, M.D., P.A., Appellants, v. Lydia C. WEISS and Steven R. Weiss, her husband, Appellees.
• Court: Florida District Court of Appeals

Page 299

516 So.2d 299

12 Fla. L. Weekly 2698

MEIN, JOEST & HAYES, M.D., P.A., Appellants, v. Lydia C. WEISS and Steven R. Weiss, her husband, Appellees.

No. BR-119.

District Court of Appeal of Florida First District.

Dec. 1, 1987.

Rehearing Denied Jan. 8, 1988.

Jeptha F. Barbour and James C. Rinaman, Jr. of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellants.

C. Rufus Pennington, III of Margol, Fryefield & Pennington, Jacksonville, for appellees.

SMITH, Chief Judge.

Appellant, Mein, Joest & Hayes, M.D., P.A., seeks review of the trial court's order granting appellees, Lydia C. Weiss and Steven R. Weiss, her husband, a new trial. We affirm.

Appellees filed this lawsuit for damages against appellant, alleging that Dr. Mein delivered their baby by the negligent use and application of forceps, and that as a direct and proximate result of Dr. Mein's negligence, Lydia Weiss suffered a severe urethrovaginal laceration, ultimately requiring the implantation of an artificial sphincter. Appellant denied the allegations of negligence, and the case proceeded to jury trial.

During closing argument, counsel for appellant remarked on two occasions that had the obstetrician not intervened with the forcep's rotation and the baby had suffered brain damage, appellees would be in court with a healthy mother and a brain damaged baby. The trial court gave a curative instruction on each occasion, advising the jury that there was no evidence of the baby ever being in danger of suffering brain damage had the forcep's rotation not been performed. Appellees' motion for a mistrial was denied.

The jury returned a verdict in favor of appellant-defendant. Thereafter, appellees' motion for a new trial was granted. In its order, the trial court found that the record may have contained evidence suggesting that the forceps rotation occurred at the proper time to avoid possible damage to the mother or child but that there was absolutely no evidence suggesting that another lawsuit would have been filed in any event. The trial court also found that defense counsel's arguments were far removed from the main issues at trial which were whether the Kielland forceps had been improperly applied and, if so, whether the improper application caused the damage to the mother.

Absent an abuse of discretion, a trial court's order granting a new trial will not be disturbed on appeal. Pullum v. Regency Contractors, Inc., 473 So.2d 824 (Fla. 1st DCA 1985). If the trial court determines...