Smith v. Mogelvang, 82-892

• Decision Date: 27 April 1983
• Docket Number: No. 82-892,82-892
• Citation: 432 So.2d 119
• Parties: Robert SMITH and Vera Smith, husband and wife, Appellants, v. L. Christian MOGELVANG, M.D., et al., Appellees.
• Court: Florida District Court of Appeals

Page 119

432 So.2d 119

Robert SMITH and Vera Smith, husband and wife, Appellants, v. L. Christian MOGELVANG, M.D., et al., Appellees.

No. 82-892.

District Court of Appeal of Florida Second District.

April 27, 1983.

Rehearing Denied June 3, 1983.

Joe N. Unger, P.A., Mark J. Feldman, P.A., and Preddy, Kutner & Hardy, Miami, for appellants.

James G. Decker and John F. Stewart of Stewart & Decker, P.A., Fort Myers, for appellees.

LEHAN, Judge.

This medical malpractice case involves whether a negligence issue was tried by implied consent under Rule 1.190(b), Florida Rules of Civil Procedure, and, if so, whether the jury should have been instructed on that issue. Also involved is whether the trial court's failure to use the Florida Standard Jury Instructions was reversible error.

The Smiths sued Dr. Mogelvang and alleged that the doctor's treatment of Mr. Smith fell below a reasonably prudent standard of medical care. The jury returned a verdict for the defendant, and the trial court entered a judgment for defendant. Plaintiffs appeal the judgment, claiming the trial court erred by refusing to give certain jury instructions requested by plaintiff. We affirm.

Surgery performed by defendant was to correct a contracture of Mr. Smith's left hand caused by scars from a severe childhood burn. Plaintiffs' contention was that after the operation the condition of the hand was worse than before. The negligence alleged in the amended complaint was that the doctor (a) "pre-operatively" failed to obtain Mr. Smith's properly informed consent prior to surgery; (b) "pre-operatively" recommended unnecessary and unreasonable surgery; (c) "post-operatively" failed to diagnose, care for and treat a condition called Volkmann's ischemic contracture that allegedly caused further injury to the hand; and (d) "post-operatively" allowed that condition to occur.

Although not alleged in the amended complaint, purported negligence during the surgery was the subject of testimony at trial, as explained below. At the end of the trial, plaintiffs requested that the jury be instructed on whether defendant was negligent in his care and treatment of Mr. Smith, arguing that such an instruction would include the issue of negligence during surgery. Defendant argued that the trial testimony had not added an issue to the case and that the jury instructions should address only the issues raised in the amended complaint. The trial court declined to give the instruction requested by plaintiffs and gave the instructions proposed by defendant.

Following the trial the trial court denied plaintiff's motion to amend the complaint to conform to the evidence by adding an allegation concerning negligence during surgery.

Rule 1.190(b), Florida Rules of Civil Procedure, provides that when issues not raised by pleadings are tried by express or implied consent of the parties, the issues shall be treated in all respects as if they had been raised in the pleadings. Plaintiffs contend that defendant, by not objecting to the foregoing testimony, impliedly consented to litigating the issue of negligence during surgery and that therefore an instruction on that issue should have been given to the jury.

It appears that the testimony could have been construed as involving two aspects of the issue of negligence during surgery. As to one of those aspects (relative most specifically to the subject of Volkmann's ischemic contracture), we agree with plaintiffs that the issue was tried by implied consent, but we cannot say that the trial court's instructions to the jury as to Volkmann's ischemic contracture did not adequately address that aspect. As to the other aspect (subjects of other possible negligence during surgery to the extent that these subjects could be construed as not referring to Volkmann's ischemic contracture), we cannot say that the trial court abused its discretion in a determination that the issue was not tried by implied consent. Therefore, the trial court's refusal to give the requested instruction was not error.

Plaintiffs' counsel persuasively argues that the issue of negligence during surgery was tried by implied consent. It is true that during the trial the attorneys and expert witnesses made various references to the procedures used during surgery. Some of those references, however, appear to be directed at the pleaded issue of whether the defendant allowed the condition known as Volkmann's ischemic contracture to occur. Although the record is not completely clear, it appears that Volkmann's ischemic contracture was presented as a condition that might be caused by procedures taken during surgery or afterwards but would only become apparent some time after surgery. Thus, although the complaint alleged specifically that the defendant allowed this condition to occur "post-operatively," both parties were apparently prepared to, and did, argue and present evidence about the existence and causes of the condition irrespective of whether it occurred during or after surgery.

Rule 1.190(b) provides that the failure to amend pleadings to conform with the evidence shall not affect the result of the trial of issues which have been tried by implied consent. From the testimony about Volkmann's ischemic contracture having occurred or having not occurred during or after surgery, we believe the issue of negligence during surgery in that respect was tried. But, again, we cannot say that the charges given to the jury, without adding the instruction requested by plaintiffs, inadequately instructed them on the issue of whether the defendant had allowed the Volkmann's ischemic contracture to occur. The remainder of this opinion concerns the other possibly separate aspect of purported negligence during surgery, i.e., testimony relative to procedures during surgery which did not refer to Volkmann's ischemic contracture.

Several portions of the expert testimony seem not to have been directed so much at whether or how Volkmann's ischemic contracture occurred as at whether various techniques during the surgery were negligently performed. One of the plaintiffs' witnesses, Dr. Nicholas Azzato, testified that straightening the fingers in one procedure caused the alleged worsened condition of the hand. Defense counsel cross-examined Dr. Azzato about that opinion. In deposition testimony read to the jury following the Azzato testimony, another of plaintiffs' experts, Dr. Richard Gardner, testified that the operation was a deviation from acceptable medical standards of care because a tourniquet was left in place too long. Defense counsel objected to the admission of that Gardner testimony as being beyond the scope of the pleadings. The trial court overruled the objection, stating that previous evidence had made the subject matter of the Gardner testimony an issue in the case. Because neither of those theories of negligence during surgery as advanced by Dr. Azzato or Dr. Gardner were specifically pleaded by plaintiffs, an additional jury instruction on the issue of negligence during surgery would have been appropriate only if the issue had been tried by the implied consent of the parties.

The essence of the broad test generally applied to determine whether an issue has been tried by implied consent is whether the party opposing introduction of the issue into the case would be unfairly prejudiced thereby. See Dixie Farms, Inc. v. Timmons, 323 So.2d 637 (Fla. 3d DCA 1975). Under that broad test, an unpleaded issue is considered as having been tried or not tried by implied consent under two interrelated criteria involving (a) whether the opposing party had a fair opportunity to defend against the issue and (b) whether the opposing party could have offered additional evidence on that issue if it had been pleaded. See International Harvester Credit Corp. v. East Coast Truck, 547 F.2d 888, 890 (5th Cir.1977); Universe Tankships, Inc. v. United States, 528 F.2d 73, 75 (3d Cir.1975); 3 Moore's Federal Practice, section 15.13 (2d ed. 1982), involving Federal Rule 15(b) which is the counterpart of Florida Rule 1.190(b). The more of an indication that additional evidence could have been offered by the opposing party if the issue had been pleaded, the greater the potential unfairness to that party from the issue not having been pleaded. And, of course, the converse may apply. Application of the foregoing criteria should determine whether or not there was prejudicial surprise and, accordingly, whether or not a finding of implied consent to the trial of the unpleaded issue would be fair.

Determining the applicability of that test is ordinarily for the sound discretion of the trial court. See Dixie Farms, Inc. v. Timmons, supra. Especially because of the abstruse nature of the expert testimony in this case, the trial court was in a better position than we are to determine the issues addressed by the testimony. We cannot say that the trial court abused its discretion. It is true that the trial court, when denying defendant's foregoing objection to the Gardner testimony, said that the matter had been placed in issue by the evidence, apparently referring to the prior Azzato testimony. But the trial judge, in later denying plaintiffs' motion to amend the amended complaint to conform to the evidence and in refusing to give plaintiffs' requested instruction, changed his mind which he was privileged to do. In our view, it is not shown that he was incorrect in doing so under the totality of the circumstances in the case.

We affirm because we cannot determine from this record that the trial court had no basis to find that defendant lacked a fair opportunity to defend against the issue of negligence during surgery, except to the extent that the foregoing testimony regarding Volkmann's ischemic contracture concerned negligence during surgery. Also, we cannot determine that plaintiffs were unfairly prejudiced. In the final analysis, this simply involves a determination of what was fundamentally...