Pierce v. Smith
| Decision Date | 27 September 1974 |
| Docket Number | No. 73--479,73--479 |
| Citation | 301 So.2d 805 |
| Parties | Robert H. PIERCE, D.O., and Pacific Indemnity Company, a California corporation, Appellants, v. James W. SMITH, and Myra Smith, his wife, Appellees. |
| Court | Florida District Court of Appeals |
T. Paine Kelly, Jr., MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellants.
George N. Meros and Peter N. Meros, Meros, Wells, Edman, Meros & Rouse, St. Petersburg, for appellees.
This is a medical malpractice action. The plaintiffs sued Robert H. Pierce, D.O., and Pacific Indemnity Co., his malpractice insurance carrier, for the complications of a bilateral vasectomy performed upon James W. Smith. The defendants answered the allegations of the complaint asserting defenses of general denial and contributory negligence and, in addition, affirmative defenses alleging that Dr. Pierce exercised the skill and diligence of a general osteopathic physician and surgeon practicing in the community and in similar communities. The jury returned a $40,000 verdict for Mr. Smith and a $5,000 verdict for Mrs. Smith. The trial judge, after hearing posttrial motions, in due course rendered judgment in favor of the plaintiffs in the sums mentioned above. This timely appeal by the defendants followed.
The important questions presented on appeal relate to the legal sufficiency of the evidence to support the verdict and the effect of certain remarks made by counsel in behalf of plaintiffs in the course of his closing argument to the jury.
The defendants urge that the plaintiffs cannot recover because of their failure to present expert testimony to substantiate the claim of malpractice. Ordinarily, expert testimony is essential to support an action for malpractice against a physician or surgeon. See 81 A.L.R.2d 590. However, in certain cases involving a charge of negligence in administering an approved medical treatment, as distinguished from a charge based upon an incorrect diagnosis or the adoption of the wrong method of treatment, Florida juries have been permitted to determine liability without the necessity of expert testimony. Atkins v. Humes, Fla.1959, 110 So.2d 663; Furnari v. Lurie, Fla.App.4th, 1971, 242 So.2d 742. Thus, in Atkins the Supreme Court said:
'. . . jurors of ordinary intelligence, sense and judgment are, in many cases, capable of reaching a conclusion, without the aid of expert testimony, in a malpractice case involving a charge of negligence in the application or administration of an approved medical treatment. . . .'
The criteria seems to be whether or not the jurors through the exercise of common sense could reasonably conclude that the pertinent facts speak for themselves as evidence of medical negligence. Cf. Dillmann v. Hellman, Fla.App.2d, 1973, 283 So.2d 388. We believe that the facts of the instant case, when construed in the light most favorable to the plaintiffs, were sufficient to meet this standard.
Mr. Smith had a prior history of bleeding, of which the doctor was aware. According to Smith, he was allowed to leave the doctor's office after the operation while he was still bleeding. He returned two days later in a swollen condition and the bleeding was continuing. Even then Smith said the doctor only recommended the application of ice packs and prescribed an antibiotic. The several doctors who testified for the defendants admitted that Smith's ultimate loss of a testicle was caused by excessive bleeding. The jury had the right to conclude that Dr. Pierce had failed to take appropriate precautions to control the bleeding under the circumstances.
In spite of the fact that the plaintiffs made a case sufficient to go to the jury, we are constrained to reverse because of the prejudicial and inflammatory effect of closing argument made by the plaintiffs' counsel. The remarks which occasioned the defendants' motion for mistrial were as follows:
'. . . Those doctors were called here at the instance of the defendant '. . . (A)n adverse verdict would not affect Dr. Pierce's ability to practice and he knows that's absolutely true. This has got nothing to do with his right to practice medicine. An adverse verdict will only call for his insurance company to pay the verdict that is imposed against him. It is not to punish him. . . .
Pierce and Pacific Indemnity Insurance Company and Jim Smith does not have the resources nor the ability to go out and compete with Dr. Pierce and the Pacific Indemnity Insurance Company in bringing expert doctors to you. That's just impossible for him to do. . . .'
Prior to Shingleton v. Bussey, 1 any purposeful reference to insurance coverage when the subject was irrelevant could be expected to lead to reversal. Carl's Market, Inc. v. Meyer, Fla.1953, 69 So.2d 789; Seminole Shell Co. v. Clearwater Flying Co., Fla.App.2d, 1963, 156 So.2d 543. Juries may now be apprised of the existence of the insurance carrier as a real party in interest. Stecher v. Pomeroy, Fla.1971, 253 So.2d 421. Yet, no Florida court has gone so far as to say that counsel is now permitted to suggest to the jury that insurance coverage will be available to pay any judgment which might be awarded against the insured defendant. In fact, the Supreme Court has held that the jury should not be told of the amount of the insurance coverage. Stecher v. Pomeroy, Supra. The quoted arguments of the plaintiffs' attorney were clearly improper. 2
The precise question remaining is whether the error mandates a reversal of the case. The plaintiffs rely upon Stecher for the proposition that the error was harmless. As we read Stecher, our Supreme Court held that the mention of insurance policy limits to the jury and the failure of the trial judge to give an instruction to disregard them were harmless error 'where an...
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Nicaise v. Gagnon, 90-3324
...adverse judgment will be paid by the defendant or its insurer. See Carlton v. Johns, 194 So.2d 670 (Fla. 4th DCA 1967); Pierce v. Smith, 301 So.2d 805 (Fla. 2d DCA 1974), cert. denied, 315 So.2d 193 (Fla.1975). However, in those cases, the word insurance was expressly The employee points ou......
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Nicaise v. Gagnon, 90-3324
...adverse judgment will be paid by the defendant or its insurer. See Carlton v. Johns, 194 So.2d 670 (Fla. 4th DCA 1967); Pierce v. Smith, 301 So.2d 805 (Fla. 2d DCA 1974), cert. denied, 315 So.2d (Fla.1975). However, in those cases, the word insurance was expressly mentioned. The employee po......
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Skislak v. Wilson, 83-3015
...that Mr. Skislak had done no wrong and that his striking Mr. Wilson was unavoidable. These facts are analogous to Pierce v. Smith, 301 So.2d 805 (Fla. 2d DCA 1974), cert. denied, 315 So.2d 193 (Fla.1975). In Pierce v. Smith, the issue of liability was also extremely close. Plaintiff's couns......
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Perry v. Langstaff
...for the plaintiff to produce a medical expert in all malpractice cases, in order to successfully obtain a jury trial. Pierce v. Smith, 301 So.2d 805 (Fla. 2d DCA 1974). Such a rule would unconstitutionally deprive a party of the right to jury trial. City of Cocoa v. Sullivan Packing Co., 16......