Valcin v. Public Health Trust of Dade County

CourtCourt of Appeal of Florida (US)
Citation10 Fla. L. Weekly 1989,473 So.2d 1297
Docket NumberNo. 81-2131,81-2131
Parties10 Fla. L. Weekly 1989 Gregoria VALCIN and Gerard Valcin, her husband, Appellants, v. PUBLIC HEALTH TRUST OF DADE COUNTY, d/b/a Jackson Memorial Hospital, Appellee.
Decision Date05 June 1984

Page 1297

473 So.2d 1297
10 Fla. L. Weekly 1989
Gregoria VALCIN and Gerard Valcin, her husband, Appellants,
PUBLIC HEALTH TRUST OF DADE COUNTY, d/b/a Jackson Memorial Hospital, Appellee.
No. 81-2131.
District Court of Appeal of Florida,
Third District.
June 5, 1984.
On Appellee's Motions for Clarification
and Rehearing Aug. 20, 1985.

Page 1299

Virgin, Whittle & Garbis and Gary E. Garbis and Thomas P. Murphy, Miami, for appellants.

Walton, Lantaff, Schroeder & Carson and George Chesrow and Kathleen M. O'Connor, Miami, for appellee.



In May 1978, after Gregoria Valcin had given birth to her fifth child at Jackson Memorial Hospital, she asked to be sterilized. Accordingly, Dr. Shroder, a member of the hospital staff, 1 performed a Pomeroy tubal ligation on Valcin six days after the birth. About a year and a half later, Valcin suffered a ruptured ectopic (tubal) pregnancy which almost caused her death. According to Valcin, this near fatality caused her permanent physical and emotional problems.

In 1981, Valcin, joined by her husband, brought suit against the defendant, Public Health Trust of Dade County, d/b/a Jackson Memorial Hospital, alleging that the hospital, through its agents, (1) breached its warranty that the sterilization procedure performed on Mrs. Valcin would be one hundred per cent effective, (2) failed to fully inform her of the risks of a sterilization procedure in obtaining her consent, and (3) negligently performed the procedure.

Page 1300

From a summary judgment entered in the hospital's favor on all three counts, the Valcins appeal.


We affirm the judgment entered on the breach of warranty count. Section 725.01, Florida Statutes (1981), effective May 20, 1975, provides:

"No action shall be brought ... whereby to charge any health care provider upon any guarantee, warranty, or assurance as to the results of any medical, surgical, or diagnostic procedure ... unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by him thereunto lawfully authorized."

Because it is undisputed that the alleged warranty that the sterilization would be one hundred per cent effective was not in writing, Section 725.01 clearly bars this claim.


Although the alleged oral assurance of one hundred per cent effectiveness cannot support an action for breach of warranty, it can, as will be seen, support Mrs. Valcin's claims that her written consents to the surgery were fraudulently induced by this false assurance and/or were procured without the divulgence of necessary information, and that therefore, the surgery was performed without her informed consent. 2

Section 768.46(4)(a), Florida Statutes (1981), provides:

"A consent which is evidenced in writing and meets the requirements of subsection (3) shall, if validly signed by the patient or another authorized person, be conclusively presumed to be a valid consent. This presumption may be rebutted if there was a fraudulent misrepresentation of a material fact in obtaining the signature."

It appears without dispute that during her hospitalization, Mrs. Valcin executed two consent forms preceding the sterilization surgery. One of these forms, a "Consent for Operative and Other Special Procedures," states, in pertinent part, that:

"The procedures listed [bilateral tubal ligation], their possible benefits, other methods of treatment, and complications from surgery or anesthesia have been fully explained to me by Dr. Sharpe. I have also been informed there are other risks such as severe loss of blood, infection, cardiac arrest, etc., that are attendant to the performance of any surgical procedure. I am aware that the practice of medicine and surgery is not an exact science, and I acknowledge that no guarantees have been made to me concerning the results of the operation or procedure."

The other form, a "Consent for Authorization for Sterilization," states, in pertinent part, that

"It has been explained to me by Doctor Sharpe that this operation [a bilateral tubal ligation] is intended to result in sterility, but this is not guaranteed."


There can be no doubt that the consent forms executed by Mrs. Valcin reflect that she consented to the risk of a future pregnancy. Section 768.46(4)(a) provides that a written consent, if, as here, validly signed by the patient, 3 is "conclusively presumed"

Page 1301

to be valid. But by this very statute's express terms, this so-called conclusive presumption "may be rebutted if there was a fraudulent misrepresentation of a material fact in obtaining the signature."

Mrs. Valcin's deposition reveals that at the time she entered Jackson Memorial Hospital to give birth to her fifth child, and, manifestly, before the execution of the consent forms and the sterilization, she discussed with Jackson personnel, nurses and doctors, her desire to be sterilized after the birth of the child she was then carrying. According to Mrs. Valcin, "they" told her "it was very simple; that they would tie my tubes up and they cut it and burn it and the chances of getting pregnant was nil." Mrs. Valcin also testified that shortly before she signed the consent forms, she was told by two of the doctors that "this one is perfect. This one would not go against it because they had a special method of doing this, that they cut it and burnt it and sealed it and there would be no chance of getting pregnant again. Millions have taken this operation and nobody had ever come up yet pregnant."

Whether the indisputably false representations alleged to have been made to Mrs. Valcin by representatives of Jackson were in fact made and induced her to give her consent are quite clearly issues of fact which cannot be determined in a summary judgment hearing. 4 Moreover, any determination (if, indeed, this was the basis of the trial court's ruling) that, as a matter of law, the conclusively presumed validity of the written consents precluded Valcin from relying on the inconsistent earlier representation would be contrary to this court's holding in Morganstine v. Rosomoff, 407 So.2d 941 (Fla. 3d DCA 1981), where, in reversing a judgment for the defendant-doctor and ordering a new trial, we held that the jury was entitled to be instructed that a fraudulent misrepresentation of a material fact in obtaining the patient's signature on the written consent, if found, overcomes the conclusivity of the presumption of a valid consent. We said in Morganstine:

"In the instant case, the record shows that Dr. Rosomoff testified that he fully advised Morganstine of all risks associated with the surgery, and the record contains a written consent form signed by Morganstine.... Morganstine testified, however, that Dr. Rosomoff assured him that there would be no complications. There was also evidence in the record to indicate that Dr. Rosomoff's statement, if made, wasn't true.... Whether any complications would be experienced by Morganstine following surgery was certainly a material factor in his decision to undergo the procedure. Since Morganstine testified his consent to the surgery was fraudulently obtained, this issue, though controverted, should have been submitted to the jury for resolution ... rather than having been determined by the judge as a matter of law." 407 So.2d at 943-44.

Likewise, in the present case, Valcin's testimony that she was assured about the absolute effectiveness of the sterilization (certainly a material factor in the decision to undergo the procedure), although controverted, raises a genuine issue of the validity of her consent, which must be resolved by the fact-finder.


Even if the fact-finder were to ultimately find against Valcin on the foregoing claim, there will remain to be resolved her independent claim that her written consents were not, in the first instance, entitled to any presumption of validity.

Page 1302

Under Section 768.46(4)(a), the consent must, inter alia, "meet the requirements of subsection (3)" before it is accorded presumptive validity. That subsection provides, in pertinent part:

"(a)1. The action of the physician, osteopath, chiropractor, podiatrist, or dentist in obtaining the consent of the patient or another person authorized to give consent for the patient was in accordance with an accepted standard of medical practice among members of the medical profession with similar training and experience in the same or similar medical community; and

"2. A reasonable individual, from the information provided by the physician, osteopath, chiropractor, podiatrist, or dentist, under the circumstances, would have a general understanding of the procedure, the medically acceptable alternative procedures or treatments, and the substantial risks and hazards inherent in the proposed treatment or procedures, which are recognized among other physicians, osteopaths, chiropractors, podiatrists, or dentists in the same or similar community who perform similar treatments or procedures;" § 768.46(3), Fla.Stat. (1981).

Simply stated, no presumption of a valid consent will arise unless the consent is an informed consent. See Dandashi v. Fine, 397 So.2d 442 (Fla. 3d DCA 1981).

Consent is "informed" where the person knows the dangers and degrees of danger of a certain procedure to be performed. Bowers v. Talmage, 159 So.2d 888 (Fla. 3d DCA 1963). However,

" '[t]he duty of a medical doctor to inform his patient of the risks of harm reasonably to be expected from a proposed course of treatment does not place upon the physician a duty to elucidate upon all of the possible risks, but only those of a serious nature. Nor does it contemplate that the patient or those in whose charge he may be are completely ignorant of medical matters. A patient is obliged to exercise the intelligence and act on the knowledge...

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