Schwab v. Tolley

• Decision Date: 01 April 1977
• Citation: 345 So.2d 747
• Parties: John E. SCHWAB and St. Paul Fire and Marine Insurance Company, a Foreign Corporation, Appellants, v. Leonard J. TOLLEY et al., Appellees. No 75--1398.
• Court: Florida District Court of Appeals

Page 747

345 So.2d 747

John E. SCHWAB and St. Paul Fire and Marine Insurance Company, a Foreign Corporation, Appellants, v. Leonard J. TOLLEY et al., Appellees.

No 75--1398.

District Court of Appeal of Florida, Fourth District.

April 1, 1977.

Rehearing Denied May 16, 1977.

Edna L. Caruso, of Howell, Kirby, Montgomery, D'Aiuto and Dean, West Palm Beach, for appellants.

Phillips & Babbitt, and Larry Klein, West Palm Beach, for appellees.

COBB, WARREN H., Associate Judge.

This appeal emanates from a medical malpractice action brought against the appellant, Dr. Schwab, a neurosurgeon, and his insurance carrier. Said appellants hereinafter will be referred to as the defendants, their status at trial.

The facts show that the primary plaintiff below, Dr. Tolley, a 54 year old dentist, was seriously injured in an automobile collision on December 24, 1972. He was treated in the hospital by Dr. Schwab, who diagnosed a swollen cord and spondylosis in the cervical area.

After various tests and discussion with Dr. Tolley and his family, Dr. Schwab performed a cervical decompressive laminectomy on January 12, 1973 to relieve pressure on the spinal cord with the hope of alleviating loss of neurological function. The operation was not successful; subsequently, Dr. Tolley has been essentially without function and quadriplegic.

The action against Dr. Schwab alleged negligence in performing an operation that was contraindicated, in the manner in which he performed the surgery and a myelogram on Dr. Tolley, and in Dr. Schwab's failure to fully inform the plaintiff of the attendant risks.

A verdict was returned by the jury in favor of Dr. Tolley in the amount of $1,325,000 and in favor of Mrs. Tolley, his wife, in the amount of $360,000. They hereinafter will be referred to as the plaintiffs.

The defendants strenuously urge numerous errors at the trial level. The major thrust at oral argument was their contention that 'Dr. Tolley failed to carry the burden of proving future loss of earning capacity with reasonable certainty.' They argue that it was error for the trial court to allow the introduction of evidence relating to Dr. Tolley's past earnings and to future loss of earning capacity as a dentist since no expert witness could testify, based on reasonable medical certainty, that Dr. Tolley would have been able to return to the practice of dentistry absent the surgery, given the serious paralysis resulting from the collission.

The plaintiffs contend, on the other hand, that the issue is one of apportionment, not the certainty that future damage will occur.

Although there was great conflict in the medical testimony at trial, that which was most favorable to plaintiffs in regard to the above point was given by Drs. Fager, Sussman, and Guttman.

Dr. Fager testified about Dr. Tolley's condition as follows:

'Now how much better he could have been as time went on I think it is hard for anyone to say. Given this particular situation had he not had surgery I think there's every likelihood that he would gave gained some more function, certainly on the left side and probably a good bit more function in the right leg, as one compares his neurological situation with other cases that I've seen over the years . . . That (being bedridden or wheelchair bound) is the worst that could have happened. I think that he could have improved enough to be up and around. If I think in terms of patients that I've seen like him, I don't know that he ever would have returned to dentistry.'

The question was asked of Dr. Fager by defense counsel:

'Q. Doctor, it's not possible to tell what Dr. Tolley's actual progress would have been had this operation not been performed, is it?

'A. It's not possible to tell how he would have progressed from that point on. I think that's speculative.'

The above answer forecloses any right of the trial court or this Court on appeal to find, as a matter of law, that Dr. Tolley could not have returned to dentistry absent the surgery. It presented a factual determination for the jury as to whether or not apportionment was possible.

Dr. Fager later testified:

'If I had to say, based upon my experience with similar cases, I'd say that he'd get around with a cane . . . dragging one leg.'

Dr. Sussman testified:

'I believe he would have walked (given proper medical care and not given the care that he was). I don't have any doubt about that . . . Now, I have never seen a case that stopped (improvement) at two weeks permanently. He had to improve more than that and chances are he would have made major further recovery because when you start getting the toes back, you as a clinical guide we always know that other muscles are going to come back . . . So, I feel it is certain, in some fashion he would, at the worst, have walked. I would have expected much more than that. I would expect he would walk very well and I would doubt that he would, that he would need mechanical devices finally to walk . . .

'I believe that (the ability of bladder and bowels) would come back.

'I can't say that (he would have returned to dentistry). I believe that he would have gotten, since he had such excellent use of his left hand, I believe that that use of that hand would have been assured him. Of course, he was a right-handed man. Now, on the right side, at the time he became paralyzed, all he had was his thumb. But, he, the chart does indicate that he had position sense in that hand. Now, whether this dentist would retrain himself so he could use a good left hand or a hand that might be just a thumb, you wouldn't want to speculate. But, now, if that hand did improve further and he just got the index finger back--and I think there is a fair chance of that--I wouldn't know why he might not attempt to go back to dentistry. But, that is, that remains a question.'

Dr. Guttman testified:

'. . . I have no doubt that if that improvement had not been arrested by that operation, that that man (Dr. Tolley) could have walked and used his left hand at least completely, and also partly his right arm.'

In response to a query as to Dr. Tolley's progress in the absence of the surgery, Dr. Guttman said:

'This is not speculation at all. Having regard to the continuous improvement he showed before the operation it can be assumed with a great degree of certainty that that man would have improved to such an extent that he would have been able to walk and use his left upper and lower extremity fully, and at least to a great extent also the right. Whether he would have got a complete recovery of the finger muscles on the right, that I could not say . . . (W) hether he would have been able to take up his job as a dental surgeon, I would not know, but there is at least a possibility.'

It is the position of the defendant that, since prospective damage must be proved with reasonable certainty, as set forth in Grainger v. Fuller, 72 Fla. 57, 72 So. 462 (1916), and the plaintiffs presented no testimony based on reasonable certainty that Dr. Tolley would have been able to return to dentistry absent the surgery, this Court should grant a new trial.

This argument is misleading. It totally disregards the fact that here we are not talking about the certainty that future damage will occur (which is uncontroverted) but its causation.

It has long been the rule in Florida that causation does not have to be proved with reasonable medical certainty or probability. Jacksonville Electric Co. v. Cubbage, 58 Fla. 287, 51 So. 139 (1910); Southern States Power Co. v. Clark, 118 Fla. 521, 159 So. 881 (1935); Eli Witt Cigar & Tobacco v. Matatics, 55 So.2d 549 (Fla. 1951); and Nationwide Mutual Ins. Co. v. Griffin, 222 So.2d 754 (Fla.1st DCA 1969). Grainger, relied on by defendants, did not concern two traumas and the difficulties of distinguishing their causal effects. It dealt with the wording of a jury instruction to limit recovery for future pain to that pain reasonably certain to occur.

It is an absolute certainty in the instant case that, as a result of either the automobile collision or the surgery or both, Dr. Tolley is a permanent quadriplegic who can never practice dentistry again. No one quarrels with this.

There was testimony at trial, as shown above, that apportionment of the causation of his ultimate injury between the two traumas (the collision and the surgery) was speculative, even impossible. There was ample testimony from which the jury properly could conclude that there was aggravation by the surgery of an existing physical condition caused by the collision, and that they could not determine what portion of Dr. Tolley's complete debility at time of trial resulted from the aggravation and could not say whether that ultimate condition (quadriplegia) would have existed apart from the aggravating injury. Therefore, Dr. Schwab can be held liable for the entire condition. This is exactly the situation contemplated by Florida Standard Jury Instruction 6.2(b) on causation.

The defendants' argument on appeal would be tenable only if the evidence, Construed most favorably for the plaintiffs, established a negative: that Dr. Tolley could not have practiced dentisty again as a result of the collision irrespective of the surgery.

The evidence favorable to plaintiff in this regard, as shown by the testimony of Drs. Fager, Sussman, and Guttman, did not establish that negative as a matter of law. Thus the factual dispute was properly submitted to the jury.

Although this rule seems harsh, it is predicated on a sound principle: the prevention of a subsequent wrongdoer from escaping responsibility where his conduct contributed to the creation of the situation in which the problems of apportionment arose. Washewich v. LeFave, 248 So.2d 670 at 673 (Fla.4th DCA 1971).

The cases cited by defendants--Fuller, supra; Baggett v. Davis, 169 So. 372 (Fla.1936); and Stores v. Hussey, 100 So.2d 649 (Fla.1st DCA 1958)--deal with the necessity of showing that future damage will...