Stanley By and Through Stanley v. U.S. Fidelity & Guar. Co., AH-500
| Decision Date | 29 December 1982 |
| Docket Number | No. AH-500,AH-500 |
| Parties | Thomas Miacle STANLEY, By and Through his parents and natural guardians, Lynn W. STANLEY and Miacle I. Stanley, and Lynn W. Stanley and Miacle I. Stanley, individually, Appellants, v. UNITED STATES FIDELITY & GUARANTY CO., St. Vincent's Medical Center, Florida Physicians Insurance Reciprocal, J. Eugene Glenn, M.D., P.A., James Eugene Glenn and the Florida Patient's Compensation Fund, Appellees. |
| Court | Florida District Court of Appeals |
James T. Terrell of Brown, Terrell & Hogan, P.A., Jacksonville, for appellants.
James C. Rinaman, Jr., and Nick V. Pulignano, Jr., of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellees James Eugene Glenn, J. Eugene Glenn, M.D., P.A., and Fla. Physicians Ins. Reciprocal.
James H. McCarty, Jr., of Boyd, Jenerette, Leemis & Staas, P.A., Jacksonville, for appellees U.S. Fidelity & Guar. Co. and St. Vincent's Medical Center.
L. Haldane Taylor, Jacksonville, for appellee Fla. Patient's Compensation Fund.
Plaintiffs appeal from a judgment entered upon a jury verdict for the defendants in this medical malpractice action. Plaintiffs' claim against the obstetrician and hospital, on account of retardation and cerebral palsy suffered by infant Tommy Stanley since birth, was that the medical defendants negligently failed to diagnose and effectively remedy the infant's oxygen deprivation just before birth. The defendants denied that and advanced the theory, supported by expert testimony and other proof, that the child's abnormalities are congenital.
Of plaintiffs' 12 points on appeal, few have substance but one is decisive. We hold that the jury's verdict for the defendants was tainted by evidence they improperly adduced to show that the special therapy and education required by the minor plaintiff, as a result of his condition however caused, is available to his family from charitable or governmental sources at little or no cost. The judgment must therefore be reversed and the case remanded for a new trial.
The collateral source doctrine of course "permits an injured party to recover full compensatory damages from a tortfeasor irrespective of the payment of any element of those damages by a source independent of the tortfeasor." 1 A corollary of that rule of recovery is one of evidence, excluding proof of collateral payments or other benefits that cannot reduce the tortfeasor's responsibility even though they may in fact inure to plaintiff's benefit. E.g., Paradis v. Thomas, 150 So.2d 457 (Fla. 2d DCA 1963).
Despite a defendant's verdict on liability, formally representing that the jury never reached damage issues, the erroneous admission of collateral source evidence has been held in certain circumstances to require a new trial because the evidence had a highly prejudicial effect. E.g., Cook v. Eney, 277 So.2d 848, 850 (Fla. 3d DCA 1973), cert. den., 285 So.2d 414 (Fla.1973) (); Williams v. Pincombe, 309 So.2d 10, 11 (Fla. 4th DCA 1975) ()
Proving damages, plaintiffs' counsel put on testimony by Dr. Buda, a pediatric neurologist, that the Stanley child would need physical therapy for life at a cost of up to $120 per month and speech therapy for several years at a cost of up to $120 per week. Over plaintiffs' objection, the defendant physician's counsel cross-examined Dr. Buda concerning the availability of the necessary treatment at reduced cost, or no cost at all, through local charities, public schools, and the like. In the main, Dr. Buda stuck to his opinion that private therapy was the better course, because of its quality and its assured availability, but to some extent he conceded the availability and usefulness of those local publicly or charitably funded programs. These excerpts fairly summarize the cross-examination questions and answers:
Q. And Baby Stanley has been availing himself of the services of that Cerebral Palsy Clinic on four or five or six occasions with a grown-up, so far?
A. He has been seen in the clinic.
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Q. How is that organized? It's located at the Nemours Hospital, the old Hope Haven Hospital?
A. For the moment, but I'm afraid it's going to have to move because of space problems.
Q. How is it sponsored?
A. The Cerebral Palsy Foundation that allocates money to the communities.
Q. A national health organization?
A. I believe so. I really couldn't make an accurate statement as to where its funding comes from.
Q. Do they get money from other organizations, like the March of Dimes and people like that?
A. I wouldn't know. I don't know how they get their funds.
Q. It operates in the community and other communities--what other kind of funding do they have, do you know?
A. I don't know how they are funded.
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Q. The Cerebral Palsy Clinic is available to the public and available to Mr. and Mrs. Stanley to provide monitoring of his condition and recommend treatment and make continuing diagnosis of the baby as he grows up?
A. Right.
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Q. There would be no charge for those services?
A. I don't know--when you say no charge, whether they have a sliding scale or what.
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Q. Does the Speech and Hearing Clinic have speech therapy like that you suggest Baby Stanley would need?
A. It depends on the Speech and Hearing Clinic. Some of them are funded and some of them are not.
Q. Well, is this one in Jacksonville funded?
A. The one I know best is the one on Laura Street. That is not funded.
Q. Are there others in town?
A. One can get speech therapy at other agencies, but as far as the Speech and Hearing Clinic, the one I know of on Laura Street, that is not funded.
Q. These are public health agencies and public health facilities that are available to the general public. They are not welfare or anything like that. They are there to provide a service for people who need that particular kind of service?
A. Right.
Q. And those programs are available to the public for nothing or for some sort of sliding scale?
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A. It mainly depends on the parents' income level, whether or not they qualify for completely funded program or whether they have a bill based on a sliding scale.
Q. Okay. And the same would be true on physical therapy that you told us about?
A. Sure.
Q. The same would be true as to educational facilities for special children's care, which is available through the public school system of Duval County?
A. Right. The public school system does have some special education schools.
Q. Right. And these schools are dedicated to taking care of cerebral palsy babies and other kinds of children who are growing up with disabilities?
A. Yes.
Q. That are the same as, not as bad as or worse than Baby Stanley?
A. Yes sir, disability similar to the Stanley baby.
Again, plaintiffs' counsel sought to prove through Dr. Reynolds, a clinical psychologist, that because of cerebral palsy and related disabilities the Stanley child would require "learning stimulation" for several hours a week, outside of normal school hours, by trained therapists. This the witness testified would cost $25 to $35 per hour. Again on cross-examination the defendant physician's counsel showed that local charitable sources could provide the needed special educational care:
Q. In Jacksonville, Doctor, the Cerebral Palsy Clinic, the Speech and Hearing Clinic and various schools available in the Duval County School System as well as ... various foundations and health groups provide the sort of services that Tommy needs ...; is that correct? ...
A. That is correct. There are facilities available.
Q. And those facilities to the Stanley family would be available free of charge or at nominal charge?
A. They are generally funded by governmental sources or--
Q. And also foundations like Nemours Foundation?
A. That's correct.
Q. And also foundations like the March of Dimes and the Cerebral Palsy Foundation and groups like that?
A. That is correct.
Q. And that is what they are there for is to take care of people who have these problems, really, regardless of their financial resources; is that right?
A. That's correct.
Q. There are specialists there who specialize in just people like Tommy Stanley?
A. That's correct.
Q. And specialists around this community who provide their services to those clinics even though they are in private practice and doing their own private money-making work in the regular life?
A. Well, they have people on staff. They have various specialties on staff in some regards.
Q. They have consultants who volunteer their time to help out the full-time staff, is that correct, different specialists?
A. There are such individuals, yes.
Q. And that has been done for years and years and years in Jacksonville?
A. So far as I know.
On redirect examination, Dr. Reynolds confirmed that "Government programs come and they go," depending on funding.
The questioning of Drs. Buda and Reynolds about governmental and charitable sources of treatment was explained by the defendant physician's counsel at the outset of his summation to the jury. He argued, without further objection by plaintiff...
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