Moisan v. Frank K. Kriz, Jr., M.D., P.A.

• Decision Date: 21 September 1988
• Docket Number: No. 87-2199,87-2199
• Citation: 531 So.2d 398,13 Fla. L. Weekly 2214
• Parties: 13 Fla. L. Weekly 2214 Barbara L. MOISAN, Appellant, v. FRANK K. KRIZ, JR., M.D., P.A., and Dr. Frank K. Kriz, Jr., M.D., individually, Appellees.
• Court: Florida District Court of Appeals

Page 398

531 So.2d 398

13 Fla. L. Weekly 2214

Barbara L. MOISAN, Appellant, v. FRANK K. KRIZ, JR., M.D., P.A., and Dr. Frank K. Kriz, Jr., M.D., individually, Appellees.

No. 87-2199.

District Court of Appeal of Florida Second District.

Sept. 21, 1988.

Edward C. Rood, Jr., Tampa, for appellant.

Joseph M. Fasi, II, of Shear, Newman, Hahn & Rosenkranz, P.A., Tampa, for appellees.

SCHEB, Acting Chief Judge.

Barbara L. Moisan, plaintiff below, challenges the entry of a directed verdict in favor of defendant, Dr. Frank K. Kriz, Jr., in a medical malpractice action. We affirm on the issue of informed consent and reverse on the issue of negligence.

In July 1981, Mrs. Moisan consulted Dr. Kriz, an orthopedic surgeon, for treatment of pain, swelling, and other problems in her right knee. Dr. Kriz recommended surgery known as a high tibial lateral closing wedge osteotomy, which he performed in January 1982. Subsequently, Mrs. Moisan developed a drop foot and consulted Dr. Roberto H. Barja, another orthopedic physician.

In her amended complaint, Mrs. Moisan alleged that Dr. Kriz was negligent in that he failed to locate, identify, and prevent trauma to the common peroneal nerve during the osteotomy. Mrs. Moisan claimed that she acquired a permanent drop foot as a result of Dr. Kriz's alleged negligence in traumatizing the nerve. She further alleged that Dr. Kriz was negligent in failing to diagnose and treat her drop foot and that his action in obtaining her consent to perform the surgery was not in accordance with accepted standards of medical practice.

The case proceeded to trial by jury. In addition to her testimony, Mrs. Moisan offered the deposition testimony of two orthopedic surgeons, Dr. Barja, the treating physician, and Dr. Everett J. Gordon. At the conclusion of Mrs. Moisan's case, Dr. Kriz moved for a directed verdict claiming that the evidence before the court did not establish that he had been negligent or that he had failed to obtain Mrs. Moisan's informed consent authorizing the surgery. The trial court granted the motion on both issues "without editorializing" and subsequently entered a final judgment in favor of Dr. Kriz. This appeal followed.

We preface our discussion by briefly outlining the principles of law governing medical malpractice suits, directed verdicts, and the applicable standard of appellate review in these cases. To prevail in a medical malpractice action, a plaintiff must identify the standard of care owed by the physician, produce evidence that the physician breached the duty to render medical care in accordance with the requisite standard of care, and establish that the breach proximately caused the injury alleged. Gooding v. University Hosp. Bldg., 445 So.2d 1015 (Fla.1984). Generally, expert testimony is required to establish the standard of care prevalent in a particular medical field. Thus, from a professional standpoint, the services rendered by a physician are scrutinized by other physicians in order to determine whether there was a failure to adhere to the requisite standard of care.

A motion for directed verdict is available during a trial to test the legal sufficiency of the evidence. Tiny's Liquors, Inc. v. Davis, 353 So.2d 168 (Fla. 3d DCA 1977). The motion must be viewed as one that admits the truth of all facts in evidence and every reasonable conclusion or inference based thereon which is favorable to the non-moving party. Hartnett v. Fowler, 94 So.2d 724 (Fla.1957). Thus, when a defendant moves for a directed verdict, the trial judge must evaluate the evidence in the light most favorable to and resolve any doubt in favor of the plaintiff. Reinhart v. Seaboard Coast Line R.R., 422 So.2d 41 (Fla. 2d DCA 1982). In ruling on the motion, the trial court may not weigh the evidence or assess a witness's credibility and must deny the motion if the evidence is conflicting or if different conclusions and inferences can be drawn from it. Maas Bros., Inc. v. Bishop, 204 So.2d 16 (Fla. 2d DCA 1967); Maximo Moorings Marine Center, Inc. v. Walke, 196 So.2d 215 (Fla....