NATIONAL HEALTHCORP LTD. v. Cascio

• Citation: 725 So.2d 1190
• Decision Date: 30 December 1998
• Docket Number: No. 97-04275,97-04275
• Parties: NATIONAL HEALTHCORP LIMITED PARTNERSHIP, authorized to operate National Healthcare Center of Hudson, Appellant, v. John F. CASCIO, Appellee.
• Court: Court of Appeal of Florida (US)

725 So.2d 1190

NATIONAL HEALTHCORP LIMITED PARTNERSHIP, authorized to operate National Healthcare Center of Hudson, Appellant, v. John F. CASCIO, Appellee.

No. 97-04275

District Court of Appeal of Florida, Second District.

December 30, 1998.

Rehearing Denied February 12, 1999.

George W. Meros, Jr., and Mary W. Chaisson of Rumberger, Kirk & Caldwell, P.A., Tallahassee; and Richard J. Caldwell and Robert L. Blank of Rumberger, Kirk & Caldwell, P.A., Tampa, co-counsel for Appellant.

James L. Wilkes II and Edward J. Lyons of Wilkes & McHugh, P.A., Tampa, for Appellee.

ALTENBERND, Judge.

The defendant, National Healthcorp Limited Partnership (National Healthcorp), appeals an order granting the plaintiff, John F. Cascio, a new trial. In this case, the trial judge died after the jury returned a verdict for National Healthcorp but before she had ruled on Mr. Cascio's motion for new trial. In his motion, Mr. Cascio argued, in part, that the verdict was contrary to the manifest weight of the evidence. The successor judge decided that he was obligated to grant a new trial without ruling on the merits of the motion because he had not been in attendance at the trial and could not assess issues involving the credibility of witnesses and possible conflicts in the evidence. The order granting new trial does not reveal any particular issue for which the manifest weight of the evidence was impacted by matters of credibility.

In a criminal context where the state is the prosecutor, the successor judge's ruling might have been correct. See State v. May, 703 So.2d 1097 (Fla. 2d DCA 1997); Sanford v. State, 687 So.2d 315 (Fla. 3d DCA 1997); Kelley v. State, 637 So.2d 972 (Fla. 1st DCA 1994). In a civil context, however, where the state merely provides a forum for dispute resolution, the parties' constitutional right to trial by jury mandates that a jury's verdict should not be so vulnerable to attack. The successor judge should review the record and rule upon the motion to the best of his or her ability. Only in an extraordinary case, after reviewing the entire record and determining that a particular credibility issue exists which prevents the trial court from ruling on the issue of manifest weight, may the successor judge grant the motion without ruling upon its merits. In such a case, the trial judge should enter an order explaining the circumstances that justify the ruling.

I. THE FACTS

On June 25, 1992, a cervical laminectomy was performed on Mr. Cascio at HCA New Port Richey Hospital. At the time of the operation, he was 65 years old, and his treatment may have been complicated by some preexisting health problems. He stayed in the hospital until July 8, 1992. He was then transferred to a nursing home owned by National Healthcorp, where he stayed for a week. During this period, he suffered leakage of cerebrospinal fluid from the surgical wound and developed an infection, which evolved into meningitis. He returned to HCA New Port Richey on July 16, 1992, and was not released until August 8, 1992. Thereafter, he spent a long period recuperating at Tampa General Hospital.¹

In May 1994, Mr. Cascio and his wife filed a lawsuit in the Thirteenth Judicial Circuit against numerous healthcare providers. The action was transferred to the Sixth Judicial Circuit. In his second amended complaint, Mr. Cascio sued Humana Medical Plan, Inc., Port Richey Medical Care, Inc., several physicians associated with Port Richey Medical Care, Inc., Suncoast Neurosurgical Center, Inc., and Dr. Albert W. Auld, a neurosurgeon. Mr. Cascio also sued National Healthcorp for negligence and for violations of the statutory protections provided to nursing home residents pursuant to section 400.022, Florida Statutes (1991).

Prior to trial, Humana Medical Plan, Inc., was dismissed from the lawsuit. Suncoast Neurosurgical Center, Inc., and Dr. Auld were also voluntarily dismissed with prejudice. Thereafter, Port Richey Medical Care, Inc., and its physicians were dismissed from the action. In addition, Mrs. Cascio was dropped from the lawsuit prior to trial. Ultimately, Mr. Cascio tried his remaining claim against National Heathcorp for nine days in September 1996. Judge Marsha B. Glisson presided at that jury trial. The case focused on Mr. Cascio's claim that National Heathcorp had violated his statutory rights. National Heathcorp raised defenses that included the comparative fault of several defendants who were no longer active parties. See Fabre v. Marin, 623 So.2d 1182 (Fla. 1993).

The statutory rights enumerated in section 400.022 are quite wide-ranging. Mr. Cascio emphasized three main theories. First, he argued that the nursing home staff did not promptly discover his developing infection and report it to the treating physicians. This theory included an argument that the nursing home had allowed improper use of medication that may have masked the initial infection. Second, Mr. Cascio argued that the staff had not treated him courteously, fairly, and with the fullest measure of dignity because he was left to sit in his own urine, allowed to fall when unsupervised, and his bandages were not changed as needed. Finally, he argued that the nursing home had used an improper medication, Haldol, as a chemical restraint.

It is obvious that the "actual damages" potentially recoverable in this case pursuant to section 400.023, Florida Statutes (1991), are extensive under Mr. Cascio's first theory, but more limited under the second and third theories. In closing argument, both sides spent the great majority of their time discussing whether the nursing home had played a role in allowing Mr. Cascio's post-surgical infection to develop into a life-threatening condition.

The jury instructions did not present these three theories, but rather described five rights. The instructions state:

The issues for your determination on the resident rights claim of John Cascio against defendant National Healthcorp Limited Partnership are, whether National Healthcorp Limited Partnership deprived and/or infringed upon any of the following rights of John Cascio, and if so whether such deprivation or infringement was a legal cause of loss, injury or damage.

A. The right to adequate and appropriate healthcare, protective and support services consistent with the resident care plan, with the established and recognized practice standards within the community, and with the rules promulgated by the department.

B. The right to civil liberties.

C. The right to be adequately informed of his medical condition and proposed treatment, and the right to participate in the planning of all medical treatment.

D. The right to be treated courteously, fairly, and with the fullest measure of dignity.

E. The right to be free from chemical restraints. Chemical restraints are medications such as tranquilizers or sedatives which are used to modify resident behavior.

For better or worse, the jury was given an interrogatory verdict form that did not attempt to isolate the jury's decision on liability for each of these five rights or along the lines of the three major theories discussed above. Instead, the jury was asked: "Was there an infringement or deprivation of John Cascio's nursing home resident's rights by defendant which was a legal cause of loss, injury or damage to John Cascio?" After returning to the courtroom on several occasions, unsuccessfully seeking copies of various physicians' depositions, the jury answered this question "no," and thus did not complete the remainder of the verdict form.²

Mr. Cascio timely moved for a new trial. His motion contains several grounds. Included among those grounds are: (1) Plaintiff was prohibited from investigating his case pretrial by an order prohibiting ex-parte communication with former employees of National Healthcorp; (2) Plaintiff was prejudiced by the admission of testimony concerning the fault of non-parties who were not joint and several tortfeasors with National Healthcorp; (3) Defendant's counsel improperly addressed the jurors by their individual names during closing argument; (4) Plaintiff was entitled to a directed verdict concerning the comparative fault of non-parties; (5) Defendant improperly excluded an African-American juror; and (6) the verdict was contrary to the manifest weight of the evidence. As is often the case, the motion itself did not flesh out the argument that the verdict was contrary to the manifest weight of the evidence.

Tragically, Judge Glisson died before she could hear the parties' argument and rule on Mr. Cascio's motion for new trial. Judge W. Lowell Bray, Jr., was then assigned the case. At that point, the parties disputed Judge Bray's role in the proceedings. Mr. Cascio's memorandum argued that because one of the grounds for the motion was whether the verdict was contrary to the manifest weight of the evidence, the motion necessarily required a determination of witness credibility, which Judge Bray could not make because he had not presided at trial and had not observed the demeanor of the witnesses as they testified. The memorandum does not detail the nature of the manifest weight argument that Mr. Cascio had intended to make to Judge Glisson, and we have no transcript of any hearing at which the parties may have discussed this issue. In September 1997, Judge Bray decided...