Salinetro v. Nystrom
| Decision Date | 01 February 1977 |
| Docket Number | No. 76-9,76-9 |
| Citation | 341 So.2d 1059 |
| Parties | Anna SALINETRO and John Salinetro, her husband, Appellants, v. Robert NYSTROM, M.D. and State Farm Mutual Automobile Insurance Company, Appellees. |
| Court | Florida District Court of Appeals |
Kneale & Starkweather, Miami, for appellants.
Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O'Hara and Richard A. Sherman, Weinstein & Bavly, Walton, Lantaff, Schroeder, Carson & Wahl, Miami, for appellees.
Before PEARSON, HAVERFIELD and NATHAN, JJ.
Anna Salinetro appeals an adverse final judgment entered pursuant to a directed verdict in this action for alleged medical malpractice.
Anna Salinetro sustained back injuries in an automobile accident and applied for personal injury benefits from her insurer, State Farm Mutual Automobile Insurance Company. State Farm required Anna to submit to a medical examination and on December 10 x-rays were taken by Dr. Nystrom of her lower back and abdominal area. Although unknown to her, Anna was approximately four-six weeks pregnant at the time; however, neither Dr. Nystrom nor his receptionist or his x-ray technician inquired whether or not she was pregnant or the date of her last menstrual period. Thereafter, upon suspecting she was pregnant, on December 12 Anna visited her gynecologist, Dr. Emilio Aldereguia, who, after running some tests, confirmed her pregnancy. In January Dr. Aldereguia learned that Dr. Nystrom had taken x-rays of Anna's pelvis and advised her to terminate her pregnancy because of possible damage to the fetus by the x-rays. Anna underwent a therapeutic abortion and the pathology report stated that the fetus was dead at the time of the abortion. Thereafter, Anna filed the instant lawsuit against Dr. Nystrom for medical malpractice. During the jury trial, Dr. Aldereguia was called as a witness for the plaintiff but the trial judge refused to allow him to testify as an expert with respect to whether or not the conduct of Dr. Nystrom fell below the standard of medical care on the ground that Dr. Aldereguia was a specialist in obstetrics and gynecology, not radiology, and, therefore, he was not qualified to pass upon the standard of care required of Dr. Nystrom, an orthopedic specialist. After the presentation of all the evidence on Anna's behalf, Dr. Nystrom moved for a directed verdict on the ground she failed to make a prima facie case of medical malpractice. The trial judge granted the motion and entered judgment for Dr. Nystrom.
Anna first contends that the record contains sufficient evidence to present to the jury a prima facie case of malpractice.
Liability for negligence depends on a showing that the injury...
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