Munoz ex rel. Munoz v. South Miami Hosp., Inc.
| Decision Date | 09 August 2000 |
| Docket Number | No. 3D98-1661.,3D98-1661. |
| Citation | 764 So.2d 854 |
| Parties | Gabriel MUNOZ, a minor, By and Through his parents and natural guardians, Marcos MUNOZ, Jr., and Ana M. Munoz, and Marcos Munoz, Jr., and Ana M. Munoz, individually, Appellants, v. SOUTH MIAMI HOSPITAL, INC., Richard L. Litt, M.D., Richard L. Litt, M.D., P.A., and Gonzalo De Quesada, M.D., Appellees. |
| Court | Florida District Court of Appeals |
Ginsberg & Schwartz and Arnold Ginsberg, Miami; Sheldon J. Schlesinger, Ft. Lauderdale, for appellants.
Greenberg Traurig and Elliot H. Scherker, Miami; Michael S. Hacker, Miami; Tilghman & Vieth and Araly Herrera, Miami, for appellees.
Before SCHWARTZ, C.J., and JORGENSON and COPE, JJ.
ON MOTION FOR REHEARING
Upon consideration of the motion for rehearing, which is otherwise denied, the majority opinion filed on April 19, 2000 is withdrawn and the following opinion is substituted in its place.
This is a medical malpractice action stemming from permanent kidney damage sustained by a newborn infant despite an adverse sonogram test which indicated the defect and expert evidence that prompt and efficient treatment, which was not appropriately rendered after the birth, would have corrected the condition. The child and his parents sued the obstetrician-gynecologist who treated the expectant mother and delivered the child, the hospital at which the child was delivered and stayed until he went home with the mother, an on-call physician who telephonically prescribed treatment for the infant during the hospital stay and the pediatrician who was primarily responsible for treating the child after delivery. While the case against the pediatrician, Dr. Ugalde, remains pending below, the trial judge entered summary judgment for the ob-gyn, the on-call physician, and the hospital. On this appeal we affirm as to the on-call physician, but reverse for trial as to the obstetrician and hospital.
During her pregnancy, the mother, Ana Munoz, underwent a sonogram ordered by her obstetrician, Dr. Richard Litt. The test suggested that one of the fetus' kidneys might not be filtering properly. The maternal grandmother discussed the test results with Dr. Jose Ugalde, who had been the family pediatrician for many years. Dr. Ugalde advised that no action should be taken prior to birth.
Dr. Litt delivered Gabriel Munoz at South Miami Hospital. He recorded the questionable sonogram result in the chart of the child, for reference to the child's pediatrician for further studies after birth, but neither Dr. Litt nor any of the nurses or other hospital personnel who were well aware of them, personally informed Dr. Ugalde of the sonogram results.
Dr. Ugalde took over the child's care at the hospital. He saw the mother daily during her hospitalization and discussed the questioned kidney filtering with her and the maternal grandmother. He said he believed that based upon his examination, the child was fine and that he held this opinion despite his review of the nurses' and the progress notes in the hospital records.
While in the hospital the baby developed an elevated bilirubin count resulting in jaundice, and did not void normally—both of which may together, but not necessarily individually, be symptomatic of kidney dysfunction. The hospital contacted Dr. DeQuesada, a pediatrician who was on-call for Dr. Ugalde, by telephone concerning the baby, but told him only of the bilirubin-jaundice problem. Dr. DeQuesada ordered treatment and that condition returned to normal. Dr. Ugalde resumed responsibility for the child's care soon thereafter but never undertook appropriate treatment for the infant's kidney condition. After discharge from the hospital, however, it was demonstrated that Gabriel suffers from severe damage to one kidney and probably almost equal damage to the other one which the plaintiff's expert testimony demonstrated could have been prevented had the child been properly examined and treated after delivery.
1. Our affirmance of the summary judgment in favor of the on-call physician is based on the clear showing that Dr. DeQuesada acted entirely correctly on the basis of the limited information conveyed by the hospital personnel.1
2. The liability of Dr. Litt and the hospital, however, should not have been taken from the jury. As to these defendants, the record contains direct, competent expert opinions that both Dr. Litt and the hospital's nurses deviated from the applicable standard of professional care by failing themselves directly—in addition to merely placing the information in the hospital records—to inform Dr. Ugalde of the potentially (and actually) devastating results of the adverse sonogram. This alone is sufficient to preclude summary judgment, see generally Moore v. Morris, 475 So.2d 666 (Fla.1985), under principles concerning duties to warn which are applicable both generally, see Tampa Drug Co. v. Wait, 103 So.2d 603 (Fla.1958), and with respect to medical situations such as this one in particular. See Visingardi v. Tirone, 193 So.2d 601 (Fla.1966); Seley v. G.D. Searle & Co., 67 Ohio St.2d 192, 423 N.E.2d 831 (1981). Moreover, because both Dr. Litt and the nurses knew or should have known that Dr. Ugalde had not responded to the dangers presented by the sonogram results, the case invokes the rule that medical professionals must, under some circumstances, see to it that serious conditions which they know about be, in fact, remedied either by themselves or by someone else competent to do so. See Jackson v. Burton, 226 Ala. 483, 147 So. 414 (1933); Reynolds v. Dennison, 981 S.W.2d 641 (Mo.Ct.App.1998); Bateman v. Rosenberg, 525 S.W.2d 753 (Mo.Ct.App. 1975).2
The trial court based its contrary conclusions on the ground, and the appellees now claim, that none of this misconduct could have been the legal cause of the child's condition because Dr. Ugalde, whose job it was to treat it, had in fact been informed of the sonogram results by the child's parents and grandparents, and testified that being also told by the obstetrician or the hospital personnel would have made no difference. In several respects, this analysis is both factually and legally flawed.
In the first place, as the concurring opinion correctly points out, Dr. Ugalde's statements about what he would or would not have done in response to warnings which should have been but were never in fact given are themselves in internal conflict. Even if they were not, however, and while, contrary to our initial view, we do not believe that even speculative statements of this kind are inadmissible, cf. Drackett Products Co. v. Blue, 152 So.2d 463 (Fla.1963), they surely cannot be given conclusive effect. See Drackett, 152 So.2d at 463; Walker v. Florida Department of Business and Professional Regulation, 705 So.2d 652 (Fla. 5th DCA 1998); 29A Am.Jur.2d Evidence § 1445 (1994); Annot., Credibility of Witness Giving Uncontradicted Testimony as Matter for Court or Jury, 62 A.L.R.2d 1191 (1958). Compare Ewing v. Sellinger, 758 So.2d 1196 (Fla. 4th DCA 2000)(considering effect of undisputed opinion of non-party physician as to his own conduct in hypothetical situation). It simply flies in the face of common sense, for example, to think that a physician would consider the statements of concerned lay relatives of the same import and impact as information conveyed with due concern and gravity by professional colleagues. And it is not for the defendants, who putatively violated their standard of care by failing to warn, to argue that their not doing so had no effect on the situation, when their doing the appropriate thing would have removed all doubt. As was said in Seley v. G.D. Searle & Co.:
[O]nly speculation can support the assumption that an adequate warning, properly communicated, would not have influenced the course of conduct adopted by a physician, even where the physician had previously received the information contained therein. "What the doctor might or might not have done had he been adequately warned is not an element plaintiff must prove as a part of her case."
67 Ohio St.2d at 201, 423 N.E.2d at 839 (footnote omitted) (quoting Hamilton v. Hardy, 37 Colo.App. 375, 387, 549 P.2d 1099, 1109 (1976), overruled on different grounds by State Bd. of Medical Examiners v. McCroskey, 880 P.2d 1188 (Colo. 1994)).
In an even broader context, we believe that this situation may be viewed as one in which (a) Dr. Litt and the nurses stood on professional ceremony by failing to tell their fellow healthcare provider of what they knew he needed to know but was ignoring, with the result that the child was terribly harmed, and (b) Dr. Ugalde, perhaps out of a sense of guilt, of denial, or both, determined to let his fellow professionals off the hook by shouldering the entire responsibility for the devastating result himself. The determination of whether any of these perfectly permissible conclusions is accurately drawn from the circumstances is, however, not the job of judges. We can think of no case which more obviously invokes the rule that the resolution of issues of negligence and causation, in the light of all the circumstances, are what jury trials, and not motions for summary judgment, are for.
Affirmed in part and reversed in part.
Upon consideration of the motion for rehearing and the revised majority opinion, I withdraw my previous concurring opinion and substitute the following concurring opinion.
I concur as to the on-call physician, Dr. DeQuesada, and concur in the result (but not the reasoning) as to Dr. Litt and South Miami Hospital.
With regard to the hospital, when the mother arrived in labor, the admitting nurse took a statement from her regarding the ultrasound and the fact that the right kidney of the infant would need to be checked after birth. This was noted on the baby's chart, but the plaintiffs' nursing expert testified that this information should have...
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