Veliz v. American Hosp., Inc., 81-1229

• Citation: 414 So.2d 226
• Decision Date: 04 May 1982
• Docket Number: No. 81-1229,81-1229
• Parties: Elena VELIZ and Gilberto Veliz, her husband, Appellants, v. AMERICAN HOSPITAL, INC., Appellee.
• Court: Court of Appeal of Florida (US)

Page 226

414 So.2d 226

Elena VELIZ and Gilberto Veliz, her husband, Appellants, v. AMERICAN HOSPITAL, INC., Appellee.

No. 81-1229.

District Court of Appeal of Florida,

Third District.

May 4, 1982.

As Corrected on Denial of Rehearing

June 7, 1982.

Rudolph Browd, Miami, for appellants.

Adams & Hill and Jeffrey C. Fulford, Orlando, for appellee.

Before HENDRY, DANIEL S. PEARSON and FERGUSON, JJ.

FERGUSON, Judge.

This appeal is taken from a Final Judgment entered on a jury verdict finding that appellee, American Hospital, Inc., was not negligent in a medical malpractice action. The first of two issues raised for our review is whether two instructions given the jury as to the standard of care required of nurses were so conflicting and confusing as to necessitate a new trial. By the second point of this appeal, appellant claims prejudicial error caused by a casual communication between the defense representative and a juror during a luncheon recess. The first issue has merit. The second issue is without merit.

On February 5, 1979, appellant was admitted to American Hospital for foot surgery. On February 6th an operation was performed under general anesthesia. Other medications were subsequently administered post-operatively. On February 7, 1979 at approximately 9:30 A.M. appellant rang the nurse's bell for assistance. The call was answered by a nurse on duty who helped appellant to the bathroom but then left her alone. While appellant was attempting to undress and wash, she experienced dizziness and fell backwards, injuring her lower back on the bathtub. The question before the jury was whether leaving the appellant in the bathroom unattended, while she was still under the influence of sedative medication, was below the standard of care required by health care providers.

At the conclusion of all the evidence, a charge conference was held at which time defendant requested a special jury instruction ¹ which was objected to by appellant. The trial court sustained the objection and indicated that the instruction would not be given. However, the trial court did read the first part of the challenged instruction to the jury, as follows:

The practice of medicine is not an exact science and nurses are not to be held liable for honest errors of judgment.

The instruction given to the jury immediately before the above-challenged instruction was Standard Jury Instruction 4.2(a) which reads:

Negligence is the failure to use reasonable care. Reasonable care on the part of a hospital is the use of that knowledge, skill and care which is generally used in similar cases and circumstances by hospitals in communities having similar medical standards and available facilities.

Appellant contends the instruction is erroneous because it is confusing as to the duty of care owed to the patient and suggests conflicting standards of proof. We agree.

This subject was considered by the Supreme Court Committee on Standard Jury Instructions which thought it deserving of a specific recommendation. That recommendation is found as a note following Standard Jury Instruction 4.2(a) and states:

The Committee recommends that no charge be given to the effect that "a physician is not to be held liable for an honest error in judgment" and that "it must be shown that the course he pursued was clearly against the course recognized as correct by his profession." The charge is confusing, difficult of application and argumentative. ²

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