Nesbitt v. Community Health of South Dade, Inc., 83-2751

• Decision Date: 19 March 1985
• Docket Number: No. 83-2751,83-2751
• Parties: 10 Fla. L. Weekly 737 Harriet L. NESBITT, as Personal Representative of the Estate of Lawrence Nesbitt, Deceased, Appellant, v. COMMUNITY HEALTH OF SOUTH DADE, INC., a Florida corporation, d/b/a Community Mental Health Center and Andrew Perfilio, M.D., Appellees.
• Court: Florida District Court of Appeals

Page 711

467 So.2d 711

10 Fla. L. Weekly 737

Harriet L. NESBITT, as Personal Representative of the Estate of Lawrence Nesbitt, Deceased, Appellant, v. COMMUNITY HEALTH OF SOUTH DADE, INC., a Florida corporation, d/b/a Community Mental Health Center and Andrew Perfilio, M.D., Appellees.

No. 83-2751.

District Court of Appeal of Florida Third District.

March 19, 1985.

Rehearing Denied May 10, 1985.

Lawrence & Daniels and Adam H. Lawrence, Miami, for appellant.

Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, Lanza, Sevier, Womack & O'Connor, Coral Gables, for appellees.

Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.

DANIEL S. PEARSON, Judge.

The appellant sued Dr. Perfilio and the Community Health Center of South Dade, alleging that each was independently negligent in the treatment of the appellant's son, Larry, and that, additionally, through the application of the doctrine of respondeat superior, the Center was responsible for Perfilio's negligence. At the heart of appellant's suit was her claim that the defendants discharged Larry from the hospital when they knew or should have known that he was then suffering from a severe mental disturbance which rendered him helpless to care for himself. On the heels of his discharge, Larry, naked from the waist down, wandered onto State Road 836 and was struck and killed by a car.

The trial concluded with the court directing a verdict in favor of the Center, the jury returning a verdict in favor of Dr. Perfilio, and the court entering the appropriate judgments. Because the record contains no evidence that the Center was itself negligent, we affirm the judgment in its favor on that aspect of Nesbitt's suit. However, because, as will be seen, the judgment for Perfilio must be reversed and a new trial granted, and because there is evidence upon which a jury could find that Perfilio acted as an agent of the Center and that the Center was thus liable for his acts, the judgment for the Center must in this respect be reversed.

Although the appellant raises a number of grounds for reversal, we address only her contention that the trial court erroneously allowed evidence of the past treatment of Larry Nesbitt by other hospitals to be used as the standard of reasonable care against which Perfilio's conduct in the present case was to be measured. We agree with the appellant that this was error and that the error was harmful to the presentation of appellant's case.

The appellant's expert witness was Dr. Charles Mutter, a psychiatrist. Dr. Mutter testified that in his opinion the medication prescribed for Larry by Perfilio was not adequately titrated, Larry was still very mentally disturbed at the time of his discharge, and the discharge note was inadequate. He stated that Perfilio's treatment of Nesbitt was, in all of these respects, below the accepted standard of care. ¹

On cross-examination, counsel for the defendants, advising Mutter that the records of Jackson Memorial Hospital in Miami covering a past hospitalization of Larry Nesbitt showed that Jackson kept Nesbitt only two days and also medicated him, ² asked whether Jackson Memorial Hospital fell below the accepted standard of care. Appellant's objection was overruled, and Mutter responded: "I don't know. I have to review the records and find out what they did, and how they came to the basis of their conclusion to answer that."

Moments later, again over appellant's objection, defense counsel embarked on the same line of inquiry, his purpose quite clear:

"Q I am here to talk about the standard of care.

"Did you have occasion to review the Bellevue and Payne Whitney Clinic records?

"A I did not have any of the records.

....

"Q Would it surprise you Doctor, that--are you familiar with Bellevue?

"A Yes.

"Q Will you tell us a little bit about that institution?

"A It is a well recognized psychiatric facility. It is an institution in New York, and it has been in existence for a number of years. Many doctors have obtained internship and residency training there because they have a tremendous wealth of clinical material.

"Q How about the Payne Whitney?

"A I don't know anything about Payne Whitney, but I recognize it as one of the institutions.

"Q It is the leading teaching center?

"A It is a respected teaching center.

"Q Would it surprise you that when the man was discharged on June 16, 1982, two or three months before this that two days prior to this discharge there wasn't a note in that chart; does that fall below the standard of care?

"MR. KELNER: Objection. Firstly, we are not trying Payne Whitney. Second, they have no knowledge of what the records did or did not show in any fashion or form.

"MR. O' CONNOR: It is creating a standard of care. What the standard of care in these facilities are. He put in issue whether or not Dr. Perfilio['s] note was adequate.

"I am asking this expert whether the fact there was no note falls below the standard of care in one of the leading institutions in the country.

"MR. KELNER: We suggest to the Court what some other institution in New York may or may not have done when they had no knowledge of what may have or may not have taken place up there is totally irrelevant to the issues to be tried in this case as to whether these Defendants fell below the standard of care.

"THE COURT: I feel the standard of care in the community or like communities is an issue in this case. It has to be in a medical malsuit.

"Q (By Mr. O' Connor) Doctor, assuming that fact to be true, does Payne Whitney fall below the standard of care?

"A It is possible, yes.

"Q If the Bellevue medical records are devoid of any mental status examination upon discharge--

"MR. KELNER: Your Honor, may I have a standing objection to this entire line of questioning?

"THE COURT: You may."

Of course, "the line of questioning" continued. Defense counsel, in the guise of the hypothetical question, related the facts as shown by the records of Jackson, Payne Whitney and Bellevue, each time ending the recitation with the question, "Did they also fall below the standard of care?" His announced purpose was to "establish the standard of care based upon ... the leading psychiatric institutions in this country." Ultimately, over appellant's objection, these hospital records were admitted in evidence. ³ Defense counsel summed up to the jury:

"What is the standard of care in this community under the circumstances, and has that standard of care been violated? The only standard of care that has been brought before you was brought in by the Defendant as evidenced by the leading psychiatric institutions in this country, and their care and treatment was well below that of C.H.I. and Dr. Perfilio. The fact remains it is inescapable. Either everyone is wrong or nobody is wrong."

As a general rule "Customary methods or conduct do not furnish a test which is conclusive or controlling on the question of negligence, or fix a standard by which negligence is to be gauged. The standard of due care is such care as a prudent person would exercise under the circumstances of the particular case, and conformity to customary or usual conduct or methods cannot amount to more than a circumstance to be considered together with other circumstances of the case in determining whether due care has been exercised."

MacDougall v. Pennsylvania Power & Light Co., 311 Pa. 387, 397, 166 A. 589, 592 (1933), quoting 45 C.J. § 87 at 707.

See Anderson v. Malloy, 700 F.2d 1208 (8th Cir.1983); Johnson v. United States, 270 F.2d 488, 491 (9th Cir.1959), cert. denied, 362 U.S. 924, 80 S.Ct. 677, 4 L.Ed.2d 742 (1960) ("[C]ustomary practice is not ordinary care; it is but evidence of ordinary care."). Otherwise stated, "[w]hat usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not." Texas & Pacific Railway Co. v. Behymer, 189 U.S. 468, 470, 23 S.Ct. 622, 623, 47 L.Ed. 905, 906 (1903). ⁴ , ⁵ The fact that a person deviates from or conforms to an accepted custom or practice does not establish conclusively that the person was or was not negligent. Anderson v. Malloy, 700 F.2d at 1212. This rule applies with equal force in medical malpractice cases. ⁶ See Walski v. Tiesenga, 72 Ill.2d 249, 21 Ill.Dec. 201, 381 N.E.2d 279 (1978); Darling v. Charleston Community Memorial Hospital, 33 Ill.2d 326, 211 N.E.2d 253 (1965), cert. denied, 383 U.S. 946, 86 S.Ct. 1204, 16 L.Ed.2d 209 (1966); Block v. Michael Reese Hospital and Medical Center, 93 Ill.App.3d 578, 49 Ill.Dec. 34, 417 N.E.2d 724 (1981); Hirn v. Edgewater Hospital, 86 Ill.App.3d 939, 42 Ill.Dec. 261, 408 N.E.2d 970 (1980); Rytkonen v. Lojacono, 269 Mich. 270, 257 N.W. 703 (1934).

Because what is usually done is merely some evidence of the standard of care, it is admissible for that limited purpose. Its admission, however, must be qualified by a cautionary instruction to the jury that the evidence does not by itself establish a standard of care. 1 J. Wigmore, Evidence § 461 (2d ed. 1923). See Brigham Young University v. Lillywhite, 118 F.2d 836 (10th Cir.), cert. denied, 314 U.S. 638, 62 S.Ct. 73, 86 L.Ed. 512 (1941); Hellweg v. Chesapeake & Potomac Telephone Co., 110 F.2d 546 (D.C.Cir.1940). The general rule that evidence of custom bearing on the fact of negligence is admissible is, of course, subject to principles of relevancy and auxiliary policy. 2 J. Wigmore, Evidence § 461 (Chadbourn rev. 1979). See also Simonds v. City of Baraboo, 93 Wis. 40, 67 N.W. 40 (1896) (trend of decisions is liberal application of general rule, yet rigid preservation of exceptions thereto). The requirements of relevancy demand that the conduct of others must have occurred under circumstances substantially similar to the one in issue. See, e.g., Anderson v. Malloy, 700 F.2d 1208. As will be seen, infra, it is doubtful whether the records of Bellevue Hospital and certain records of Payne...