Potock v. Turek, 68--1085
| Decision Date | 04 November 1969 |
| Docket Number | No. 68--1085,68--1085 |
| Citation | 227 So.2d 724 |
| Parties | Madonna POTOCK, a single woman, Appellant, v. Samuel L. TUREK, M.D., Appellee. |
| Court | Florida District Court of Appeals |
Edward B. Johnson, Jr., and Jeanne Heyward, Miami, for appellant.
Carlton & Vogler, Miami, for appellee.
Before PEARSON, C.J., and BARKDULL and HENDRY, JJ.
Appellant, plaintiff in the trial court, seeks review of an adverse final judgment rendered on a jury verdict in a medical malpractice cause. The plaintiff's amended complaint contained seven counts related to the alleged negligence of the defendant. At the conclusion of the plaintiff's case, her counsel stipulated there was insufficient evidence to submit two of the counts to the jury. The trial judge directed a verdict on one of the counts and, at the conclusion of all the evidence, submitted the matter to the jury on the alleged negligence contained in the four remaining counts. The jury returned a verdict in favor of the defendant and this appeal ensued.
The appellant contends, first, that the trial court erred in entering a directed verdict on one of the counts. We find no merit in this contention. There was no evidence to support the count, which charged:
'That the defendant * * * negligently and carelessly failed to visualize the lumbosacral disc spaces during the fusion operation and prior to performing a fusion of the lumbosacral spine in order to determine the absence or presence of degenerative disc disease.'
Therefore, the action of the trial judge was correct. Jacksonville Electric Company v. Dillon, 67 Fla. 114, 64 So. 669; St. Johns Electric Company v. Lawler, 90 Fla. 188, 105 So. 818; Wirt v. Fraser, 158 Fla. 777, 30 So.2d 174.
Secondly, the appellant contends that the trial court erred in limiting the time of closing argument. Initially, it does not appear from the record that the trial judge arbitrarily limited the time; but even if he did it does not appear that this would be an abuse of discretion. Generally, the manner of conducting a trial and the time for closing argument lies within the discretion of the trial judge. Daniel v. Rogers, Fla.1954, 72 So.2d 391; 32 Fla.Jur., Trial, § 116; Anno. 3 A.L.R.3rd 1341.
Thirdly, the appellant contends the trial judge erred in giving the following instruction:
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