Public Health Trust of Dade County v. Valcin, No. 67673

• Court: United States State Supreme Court of Florida
• Writing for the Court: McDONALD
• Citation: 507 So.2d 596,12 Fla. L. Weekly 211
• Docket Number: No. 67673
• Decision Date: 30 April 1987
• Parties: , 12 Fla. L. Weekly 211 PUBLIC HEALTH TRUST OF DADE COUNTY, d/b/a Jackson Memorial Hospital, Petitioner, v. Gregoria VALCIN, et al., Respondents.

Page 596

507 So.2d 596 69 A.L.R.4th 895, 12 Fla. L. Weekly 211 PUBLIC HEALTH TRUST OF DADE COUNTY, d/b/a Jackson Memorial Hospital, Petitioner,
v.
Gregoria VALCIN, et al., Respondents. No. 67673. Supreme Court of Florida. April 30, 1987.

Page 597

Miller Walton and George W. Chesrow of Walton, Lantaff, Schroeder & Carson, Miami, for petitioner.

William A. Bell, Tallahassee, for intervenor/petitioner, Florida Hosp. Ass'n.

Arnold R. Ginsberg of Horton, Perse & Ginsberg, and Virgin & Kray, P.A., Miami, for respondents.

ADKINS (Ret.) Justice.

In reversing in part the summary judgment resolving all issues in a medical malpractice action in favor of defendant/petitioner Public Health Trust of Dade County, d/b/a Jackson Memorial Hospital (Hospital) and against plaintiff/respondent Gregoria Valcin (Valcin), the district court adopted a scheme of evidentiary presumptions to be utilized when the absence of surgical operative notes impairs the plaintiff's ability to establish his case. Valcin v. Public Health Trust, 473 So.2d 1297 (Fla. 3d DCA 1984). Because the scheme involved an irrebuttable presumption, found violative of due process in Straughn v. K & K Land Management, Inc., 326 So.2d 421 (Fla.1976), we find jurisdiction based on conflict. Art. V, § 3(b)(3), Fla. Const. We approve in part and quash in part the decision under review.

A year and one-half after undergoing tubal ligation surgery in an effort to be sterilized, respondent Valcin suffered a ruptured ectopic pregnancy which nearly caused her death. She, joined by her husband, sued petitioner Hospital on the grounds that its agents had 1) breached an alleged warranty as to the effectiveness of the operation, 2) failed to obtain a truly informed consent, and 3) negligently performed the operation. While the district court found the summary judgment on the first claim proper in the absence of the written guarantee required under section 725.01, Florida Statutes (1981), it found genuine issues of material fact requiring jury resolution in the latter two claims.

First, the district court found the alleged oral warranties sufficient to raise a question of fraud vitiating an informed consent under the statute then in effect, section 768.46(4)(a), Florida Statutes (1981). The statute provided as follows:

A consent which is evidenced in writing and meets the requirements of subsection (3) shall, if validly signed by the patient or another authorized person, be conclusively presumed to be a valid consent. This presumption may be rebutted if there was a fraudulent misrepresentation of a material fact in obtaining the signature.

The court found the existence of an informed consent additionally called into question by Valcin's statement that she had never been informed of the specific risk of an ectopic pregnancy.

Second, the court reversed the summary judgment on the claim of negligent performance of the operation, which the trial court had apparently granted on the basis that a deposition of Valcin's sole medical witness "conclusively showed that he could not testify that the sterilization procedure departed from acceptable medical standards, or that any such departure proximately caused Valcin's subsequent ectopic pregnancy." 473 So.2d at 1303.

While noting the general rule that it is the plaintiff's burden to establish medical malpractice, Atkins v. Humes, 110 So.2d 663 (Fla.1959), the district court found that the lack of an "operative report" by the surgeon in Valcin's file impaired the expert's ability to determine whether the operation had been performed with due care. Some question exists in the instant case as to the existence or adequacy of an operative note in the case. Although such a note "normally records the preoperative diagnosis, a detailed record of his [the surgeon's] procedure (cut by cut and stitch by stitch

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almost), the operative findings, and the condition in which the patient was transferred to the recovery ward ... following surgery," J. McQuade, Medical Practice for Trial Lawyers § 2-20 (2d ed. 1985), the district court found that the failure of the instant note to do any of these things hindered the plaintiff's ability to proceed.

Finding a statutory duty to maintain such records, and holding that "where evidence peculiarly within the knowledge of the adversary is, as here, not made available to the party who has the burden of proof, other rules must be fashioned," 473 So.2d at 1305 (footnote omitted), the district court created the following rules. If the hospital is unable to produce the records, a burden is preliminarily placed upon it to prove by the greater weight of the evidence that "the records are not missing due to an intentional or deliberate act or omission" of the hospital or its employees. Id. at 1306. If the fact-finder determines that the hospital has met this burden, "the fact that the record is missing will merely raise a presumption that the surgical procedure was negligently performed, which presumption may be rebutted by the hospital by the greater weight of the evidence." Id. However, if the employee doctor is found to have deliberately omitted making the report, or the hospital is found to have deliberately failed to maintain it, "then a conclusive, irrebuttable presumption that the surgical procedure was negligently performed will arise, and judgment as to liability shall be entered in favor of Valcin." Id.

We agree that material issues of fact have been raised in regard to the latter two claims, necessitating resolution of those issues by trial. Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla.1982). We must, however, quash in part the district court's holdings as to the law to be applied in resolving these issues upon remand.

We turn first to the issue of informed consent. Prior to the operation Valcin signed two consent forms, the first indicating the general hazards of surgery and reciting that "surgery is not an exact science, and I acknowledge that no guarantees have been made to me concerning the results of the operation or procedure." The second form, a "Consent for Authorization for Sterilization," stated that "It has been explained to me by Doctor Sharpe that this operation [a bilateral tubal ligation] is intended to result in sterility, but this is not guaranteed."

In spite of these signed consent forms, the district court properly found material questions of fact raised by Valcin's allegations of oral warranties as to the effectiveness of the operation, Morganstine v. Rosomoff, 407 So.2d 941 (Fla. 3d DCA 1981), and her claim, unrefuted by the language of the signed consent forms, that she had not been informed of the particular risk of an ectopic pregnancy. Thomas v. Berrios, 348 So.2d 905 (Fla. 2d DCA 1977). We agree that Valcin's allegations were sufficient to withstand a motion for summary judgment, at least in the absence of the defendant's having conclusively established either that an ectopic pregnancy was not a "substantial risk[ ] ... inherent in the proposed treatment," section 768.46(3)(a)2, Florida Statutes (1985), or that failure to so inform the...