Sims v. Brown, Nos. 73949

CourtUnited States State Supreme Court of Florida
Writing for the CourtMcDONALD; SHAW; GRIMES; EHRLICH; BARKETT; GRIMES; EHRLICH
Citation574 So.2d 131,16 Fla. L. Weekly 112
Docket Number73964 and 73965,Nos. 73949
Decision Date18 January 1991
Parties16 Fla. L. Weekly 112 M. David SIMS, M.D., Petitioner, v. Mary BROWN, Respondent. Christian KEEDY, M.D., Petitioner, v. Mary BROWN, Respondent. SOUTH MIAMI HOSPITAL FOUNDATION, INC., Petitioner, v. Mary BROWN, Respondent.

Page 131

574 So.2d 131
16 Fla. L. Weekly 112
M. David SIMS, M.D., Petitioner,
v.
Mary BROWN, Respondent.
Christian KEEDY, M.D., Petitioner,
v.
Mary BROWN, Respondent.
SOUTH MIAMI HOSPITAL FOUNDATION, INC., Petitioner,
v.
Mary BROWN, Respondent.
Nos. 73949, 73964 and 73965.
Supreme Court of Florida.
Jan. 18, 1991.

Page 132

Pamela Beckham of Carey, Dwyer, Eckhart, Mason, Spring & Beckham, P.A., Miami, for petitioner, M. David Sims, M.D.

Debra J. Snow and Robert M. Klein of Stephens, Lynn, Klein & McNicholas, P.A., Miami, for petitioner, Christian Keedy, M.D.

James E. Tribble and Paul R. Larkin, Jr. of Blackwell, Walker, Fascell & Hoehl, Miami, for petitioner, South Miami Hosp. Foundation, Inc.

Paul Siegel and John L. Zavertnik of Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A., Miami, for respondent.

McDONALD, Justice.

We granted review of Brown v. Sims, 538 So.2d 901 (Fla. 3d DCA 1989), because of claimed conflict with decisions of this Court or of other district courts of appeal. 1 We quash Brown in part and remand this case to the district court.

Brown sued Sims, a gynecologist, Keedy, a neurosurgeon, and South Miami Hospital, claiming that the defendants' negligence caused a stroke suffered during or shortly after an operation performed by Sims to remove an ovarian cyst. At trial the court granted Sims a directed verdict while Keedy and South Miami Hospital secured a favorable jury verdict. The district court vacated all defendants' judgments and ordered a new trial.

Sims' claim of conflict rests on his assertion that the opinion under review conflicts with Chenoweth v. Kemp, 396 So.2d 1122 (Fla.1981). Chenoweth is discussed in the district court's opinion, and we now conclude that that opinion is, in fact, consistent, and not in conflict, with Chenoweth. The district court held that excluding the testimony of Dr. Cohen, a neurologist, coupled with the existence of a genuine issue of fact as to Sims' negligence, precluded a directed verdict for him. Although Cohen did not have the qualifications to testify to any defect in Sims' surgical procedures, Brown's claim of negligence was not predicated on the negligent performance of the operation, but primarily on the claim that the preoperative histories and physicals were inadequate. As to these issues, Cohen had the requisite expertise to testify. The district court, applying

Page 133

Chenoweth properly, found that his testimony should have been received.

We may or may not have concluded that the directed verdict for Sims was proper, but we find no conflict in the district court's decision to vest jurisdiction to review Sims' claim to this effect. Thus, we vacate our order granting review insofar as Sims is concerned.

In reversing the jury verdicts for Keedy and South Miami, however, the decision under review conflicts with other decisions and, in our view, is erroneous.

At Sims' request, Keedy performed a preoperative neurological examination of Brown. He cleared her for surgery, but did not document his examination or write a report until several days after the operation. Dr. Albanes, a staff physician for the hospital, also performed a preoperative examination of Brown and cleared her for surgery. 2 Sims removed the ovarian cyst, and Brown suffered a stroke. Brown contended that, had a proper preoperative examination been conducted, a condition which likely was a factor in the stroke would have been discovered and corrected before surgery.

The trial judge disallowed putting into evidence a 1979 report of the Joint Commission on Accreditation of Hospitals (JCAH) wherein the commission found a specific deficiency in the hospital's recording of "an adequate current history and physical examination." The district court found this to be reversible error. One reason for the trial judge's rejection of this report was its remoteness in time. A subsequent JCAH report, but one which preceded the alleged negligence in this case, failed to mention any deficiency in the record keeping of the hospital. To be relevant, particularly if remote in time, a prior dangerous condition or negligent cause of conduct must be shown to continue uncorrected up to the time of the act sued upon. Gallagher v. L.K. Restaurant & Motels, Inc., 481 So.2d 562 (Fla. 5th DCA 1986). Brown has failed to show this and the decision under review conflicts with Gallagher.

The trial judge also found this report irrelevant or if relevant more confusing than helpful. When the district court found its exclusion reversible error, it did so without explicitly finding that the trial judge abused his discretion. In Trees v. K-Mart Corp., 467 So.2d 401, 403 (Fla. 4th DCA), review denied, 479 So.2d 119 (Fla.1985), the Fourth District Court of Appeal stated: "The determination of relevancy is within the discretion of the trial court. Where a trial court has weighed probative value against prejudicial impact before reaching its decision to admit or exclude evidence, an appellate court will not overturn that decision absent a clear abuse of discretion." (Citations omitted.)

We agree that the foregoing statement is the correct standard to review a ruling on the admissibility of evidence under section 90.403, Florida Statutes (1989). The weighing of relevance versus prejudice or confusion is best performed by the trial judge who is present and best able to compare the two. In this case the relevance of the alleged deficiencies in the hospital's record keeping is even more obscure than the claim that Keedy's report should have been made in writing before Sims performed the operation. 3 The alleged cause of injury here was the negligent clearance for, and the subsequent trauma caused by, the...

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56 practice notes
  • Williams v. State, No. 95-2476
    • United States
    • Court of Appeal of Florida (US)
    • March 18, 1998
    ...to prove the defendant's condition at the time of arrest, we answer the second certified question in the affirmative. See Sims v. Brown, 574 So.2d 131 IV. USE OF THE HGN TEST TO PROVE A SPECIFIC BLOOD ALCOHOL LEVEL The trial court's fourth certified question asks whether the state may prove......
  • Florida Power & Light Co. v. Goldberg, No. 3D00-63.
    • United States
    • Court of Appeal of Florida (US)
    • May 22, 2002
    ...of probative value against unfair prejudice. The determination of relevancy is within the discretion of the court. Sims v. Brown, 574 So.2d 131, 133 (Fla.1991). Photographic evidence which is relevant for some legitimate purpose does not become inadmissible in every instance simply because ......
  • Stephens v. State, No. SC92987.
    • United States
    • United States State Supreme Court of Florida
    • March 15, 2001
    ...However, the trial court should be given wide discretion in determining whether the evidence is unduly prejudicial. See Sims v. Brown, 574 So.2d 131 (Fla.1991) (finding the weighing of relevance versus prejudice or confusion is best performed by the trial judge who is present and best able ......
  • Krys v. Lufthansa German Airlines, No. 96-4430
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • August 25, 1997
    ...conclusive, evidence of the standard of care. Brown v. Sims, 538 So.2d 901, 905 (Fla.Dist.Ct.App.1989), quashed in part on other grounds, 574 So.2d 131 23 The Lufthansa Operating Procedures Manual describes the following "therapy" for a passenger displaying symptoms of a heart attack: Have ......
  • Request a trial to view additional results
56 cases
  • Williams v. State, No. 95-2476
    • United States
    • Court of Appeal of Florida (US)
    • March 18, 1998
    ...to prove the defendant's condition at the time of arrest, we answer the second certified question in the affirmative. See Sims v. Brown, 574 So.2d 131 IV. USE OF THE HGN TEST TO PROVE A SPECIFIC BLOOD ALCOHOL LEVEL The trial court's fourth certified question asks whether the state may prove......
  • Florida Power & Light Co. v. Goldberg, No. 3D00-63.
    • United States
    • Court of Appeal of Florida (US)
    • May 22, 2002
    ...of probative value against unfair prejudice. The determination of relevancy is within the discretion of the court. Sims v. Brown, 574 So.2d 131, 133 (Fla.1991). Photographic evidence which is relevant for some legitimate purpose does not become inadmissible in every instance simply because ......
  • Stephens v. State, No. SC92987.
    • United States
    • United States State Supreme Court of Florida
    • March 15, 2001
    ...However, the trial court should be given wide discretion in determining whether the evidence is unduly prejudicial. See Sims v. Brown, 574 So.2d 131 (Fla.1991) (finding the weighing of relevance versus prejudice or confusion is best performed by the trial judge who is present and best able ......
  • Krys v. Lufthansa German Airlines, No. 96-4430
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • August 25, 1997
    ...conclusive, evidence of the standard of care. Brown v. Sims, 538 So.2d 901, 905 (Fla.Dist.Ct.App.1989), quashed in part on other grounds, 574 So.2d 131 23 The Lufthansa Operating Procedures Manual describes the following "therapy" for a passenger displaying symptoms of a heart attack: Have ......
  • Request a trial to view additional results

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