Perry v. Langstaff
| Decision Date | 23 April 1980 |
| Docket Number | Nos. 78-850,s. 78-850 |
| Parties | Florence PERRY, Appellant, v. J. M. LANGSTAFF, M.D., Appellee. /T4-93, 78-1092/T4-93A. |
| Court | Florida District Court of Appeals |
Arnold R. Ginsberg of Horton, Perse & Ginsberg and Hawkesworth & Schmick, P. A., Miami, for appellant.
John G. Rooney of Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Rockledge, for appellee.
In this malpractice action, the trial court entered a summary judgment for the defendant urologist, and timely appeal was initiated to this Court. The plaintiff claimed the defendant negligently severed the right external iliac artery during surgery to remove kidney stones from the ureter.
The evidence viewed most favorably for the plaintiff supports, at least inferentially, the proposition that the defendant surgically severed the artery after identification was made of the ureter. Does this constitute actionable negligence based upon a departure from the accepted standard of care prescribed by Section 768.45(1), Florida Statutes? The appellant asserted at the trial level and in her appellate brief that it does. At least one expert witness, a vascular surgeon, Dr. LaRosa, testified in his deposition that this type of incident is recurrent even with the most careful urologic surgeons.
The defendant testified before the trial court that the artery should not be cut in normal circumstances, but in this case of abnormal scarring he did not admit that cutting the artery was negligence. He did make the statement, "In a normal anatomical decision, you'd have to be an idiot to cut it." He denied making such a decision, and the uncontroverted evidence before the trial court was that this was not a normal anatomical situation, but an extraordinary case of scar tissue formation resulting from past surgical procedures and disease. No evidence, expert or lay, was presented to the trial court to support the breach of the requisite statutory duty under these facts.
Once the movant for summary judgment has met his initial burden of tendering competent evidence demonstrating the non-existence of any genuine issue of material fact, the opposing party must come forward with counter-evidence sufficient to reveal a genuine issue. It is not enough to merely assert that a breach of duty existed. See Landers v. Milton, 370 So.2d 368 (Fla.1979); Harvey Building, Inc. v. Haley, 175 So.2d 780 (Fla.1965); Farrey v. Bettendorf, 96 So.2d 889 (Fla.1957). Accordingly, the summary judgment entered by the trial court is AFFIRMED.
This is an appeal from a summary judgment in favor of the defendant/doctor in a medical malpractice suit. The trial court relied on Sims v. Helms, 345 So.2d 721 (Fla.1977), and Thomas v. Berrios, 348 So.2d 905 (Fla. 2d DCA 1977) in granting a summary judgment. It stated there were no material issues of fact because the plaintiff would not be able to provide an expert medical witness to support her claim at trial. The plaintiff argues she should have been allowed to proceed to trial based on the testimony of doctors and the parties adduced at the medical mediation procedure and pre-trial discovery.
The defendant performed surgery on the plaintiff for removal of a kidney stone from her ureter. Because this was not plaintiff's first surgery of this nature, there was a great deal of scar tissue, which made identification of the ureter difficult. During the course of the surgery the iliac artery was cut with a scalpel. Defendant's notes made immediately following the surgery state:
Dialated ureter was noted and attempts at disection of this down to the level of the stone, a vertical clean defect was made in the right iliac artery.
Two months later the defendant added the following notation: "However, in the course of events, in the dissection of the scar tissue around the ureter, the right external iliac vessel was lacerated." One fair inference from the surgical notes and the defendant's deposition is that the cut in the artery happened after he had located and identified the ureter and the blood vessel beneath it.
The medical testimony focused on the difficulty in finding and properly locating the ureter and the artery in a patient who has previously had surgery in the same area, and who has a lot of scar tissue. In such an operation, damage to the artery by nicking or tearing it is not unlikely or unusual. But the defendant himself admitted that the artery should not be cut where the vessel has been identified, or at least such was a permissible inference from his testimony given at his deposition.
Under the circumstances of ...
To continue reading
Request your trial
- Cox v. State, 1D99-2737.
-
Depontis v. American Land Cruisers, Inc., 86-2452
...DCA 1986); Roberts v. Stokley, 388 So.2d 1267 (Fla.2d DCA 1980), pet. for review denied, 394 So.2d 1153 (Fla.1981); Perry v. Langstaff, 383 So.2d 1104, 1105 (Fla.5th DCA), pet. for review denied, 392 So.2d 1377 (Fla.1980); Latour Auto Sales, Inc. v. Stromberg-Carlson Leasing Corp., 335 So.2......
-
Becker v. Williams, 93-0806
...that he made a mistake in cutting Mr. Williams' nerve. The record shows Dr. Becker made no such admission. Cf. Perry v. Langstaff, 383 So.2d 1104 (Fla. 5th DCA 1980) (affirming a summary judgment in favor of defendant urologist where evidence showed that the defendant did not admit any negl......
- Ashley v. State