Visingardi v. Tirone

Decision Date23 November 1966
Docket Number34820--A,Nos. 34820,s. 34820
Citation193 So.2d 601
PartiesJoseph VISINGARDI, Petitioner, v. Antonio TIRONE and St. Francis Hospital, Inc., a Florida non-profitcorporation, Respondents (two cases).
CourtFlorida Supreme Court

Nichols, Gaither, Beckham, Colson, Spence & Hicks and Robert Orseck, Miami, for petitioner.

Carey, Dwyer, Austin, Cole & Stephens and Edward A. Perse, Miami, for Antonio Tirone.

Taylor, Brion, Buker, Hames & Greene, Miami, for St. Francis Hospital, Inc.

O'CONNELL, Justice.

The petitioner instituted this wrongful death action, alleging that the negligence of the defendants resulted in the death of his wife. The deceased, aged twenty-six and the mother of three children, was admitted to the respondent hospital on August 13, 1961 for surgery, including a D & C and conization of cervix, uterine suspension, presacral neurectomy, and appendectomy. The surgery was performed by respondent Tirone on the morning of August 16, 1961. On the early evening of that day, the patient began to suffer severe post-operative headaches and to froth at the mouth and lapsed into a state of unconsciousness. She died the following morning. The autopsy report indicated the cause of death as 'cerebral edema and congestion with degenerative changes of the cerebral cortex and basal ganglia, etiology undetermined.'

The defendants were Dr. Tirone, the surgeon, and the hospital. Paraphrased, the negligence alleged against Dr. Tirone was: Negligent performance of the operations; negligent post-operative care of the patient; negligent failure to obtain the patient's consent to the operative procedures; negligent diagnosis of a post-operative shock condition; negligent failure to arrange for specialists to examine and treat the patient after his own care and treatment of her had proved ineffectual; negligent supervision of the operation, administration of anesthesia, and medications relative thereto; and negligent failure to render prompt care and treatment to the deceased after becoming aware of the emergency state of her condition.

The negligence alleged against the hospital was in failing to control and administer its staff, with the result that certain hospital personnel failed to communicate pertinent information to the doctors responsible for the treatment of the deceased and in failing to supervise the staff so that medications ordered by the doctors were given to the patient.

After extensive discovery procedures, both defendants moved for summary judgment and filed affidavits in support thereof. In general, these affidavits merely asserted that all that the defendants did was in accordance with accepted standards of the community. In opposition to the motions for summary judgment, plaintiff filed a lengthy affidavit by one Dr. Graubard, a New York medical expert. On the basis of his examination of the hospital records and of the affidavits and depositions in the record, Dr. Graubard listed some fourteen acts of negligence on the part of Dr. Tirone and five on the part of the employees of the hospital. The affidavit concluded as follows:

'10. Based on a reasonable degree of medical certainty the foregoing acts of * * * Antonio Tirone and St. Francis Hospital, its agents, servants and/or its employees, * * * acting together proximately precipitated, caused, activated, aggravated and/or accelerated the injuries to the person of DOROTHY VISINGARDI for which she claims damages herein.'

The defendants moved to strike Dr. Graubard's affidavit on the grounds (1) that it failed to set forth sufficient facts that would be admissible at trial, and (2) that it failed to disclose that the doctor was familiar with the local standards of the community. The trial court granted the motion to strike, though without identifying the ground for its action, and then entered summary final judgments in favor of both defendants.

On appeal, plaintiff argued generally that the trial court erred in that (1) the affidavit of Dr. Graubard affirmatively demonstrated negligence on the part of the doctor and the hospital; (2) there was a material issue as to informed consent; and (3) it failed to apply the doctrine of res ipsa loquitur.

In its decision, reported at 178 So.2d 135, the District Court of Appeal, Third District, affirmed, rejecting all three arguments. As to the first, it held that Dr. Graubard's affidavit was properly stricken as failing to contain sufficient allegations that would have been admissible at the time of trial. The court specifically rejected the alternative ground offered by defendants for striking the affidavit--that it failed to disclose that the doctor was familiar with local standards in the community. Finally, as to his third argument, it held that the doctrine of res ipsa loquitur was not applicable in malpractice actions against doctors and, in any event, that its essential prerequisites were not present as to either defendant.

We find sufficient conflict to justify our taking jurisdiction in the fact that in affirming the striking of Dr. Graubard's affidavit, the district court expressly relied upon its own decision in Holl v. Talcott, Fla.App.1965, 171 So.2d 412, which we subsequently quashed; Fla., 191 So.2d 40, filed June 1, 1966. In the latter opinion, we expressly held that the affidavit in that case should not have been stricken.

The basic error in both the Holl case, supra, and the instant case consisted of the failure of the lower courts to distinguish adequately between the plaintiff's burden at the trial and that which he bore as the party opposing a motion for summary judgment. In both cases, the lower courts appeared to proceed as though the movant's burden in the latter circumstance were something less than to show conclusively that no material issues remained for trial. The result, of course, was to place upon the opposing party a heavier burden of showing such triable issues than the rule either requires or allows to be placed upon him.

In both cases, this attitude was implicit in the striking of the affidavits submitted in opposition to the motion for summary judgment. However, whereas in Holl it also seemed patent in the language of the district court's opinion, it only appears in rather subtle form in the opinion under review. Thus, the court below took exception to language employed by the second district court in Matarese v. Leesburg Elks Club, Fla.App.1965, 171 So.2d 606, applying the phrase 'burden of proof' in the summary judgment context, and suggested that the Matarese court must have meant 'burden on the motion.' The clear implication of this passage is that the defendant-movant's burden on motion for summary judgment is something less than that of the plaintiff at the trial.

Although the Matarese court did use the phrase in question in a very different context than that from which it was borrowed (See Steinberg v. Adams, D.C.S.D. New York 1950, 90 F.Supp. 604, 608), the error, if any, was in the opposite direction from that indicated by the court below. In other words, the burden of a party moving for summary judgment is greater, not less, than that of the plaintiff at the trial. The plaintiff may prevail on the basis of a mere preponderance of the evidence. However, the party moving for summary judgment must show Conclusively that no material issues remain for trial. Harvey Bldg., Inc. v. Haley, Fla.1965, 175 So.2d 780.

As we have said, the same erroneous view concerning the burden of the party opposing a motion for summary judgment also seemed to infect the district court's affirmance of the striking of Dr. Graubard's affidavit herein. Said the court, at p. 136 of 178 So.2d:

'We approve the striking of the affidavit upon the principle that it failed to contain sufficient allegations that would have been entitled to be...

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97 cases
  • Hill v. State
    • United States
    • Florida District Court of Appeals
    • March 31, 1978
    ...of Columbia code). A preponderance of the evidence is the standard of proof normally applicable in civil matters, Visingardi v. Tirone, 193 So.2d 601, 604 (Fla.1967); Schoenrock v. Schoenrock, 202 So.2d 571, 573 (Fla. 2d DCA 1967), and is the degree of proof properly required for the releas......
  • Brown v. Wood, 6801
    • United States
    • Florida District Court of Appeals
    • September 6, 1967
    ...' Ditlow v. Kaplan, Fla.App.1965, 181 So.2d 226, 228. See Visingardi v. Tirone, Fla.App.1965, 178 So.2d 135, rev. on other grounds, Fla.1966, 193 So.2d 601; Bowers v. Talmage, Fla.App.1963, 159 So.2d 888. This standard closely resembles that used in the general malpractice cases. See McCoid......
  • Confederation Life Ass'n v. Vega Y Arminan
    • United States
    • Florida District Court of Appeals
    • January 23, 1968
    ...aff'd, 286 App.Div. 999, 145 N.Y.S.2d 310 (1955).18 Secombe v. Steele, 61 U.S. (20 How.) 94, 15 L.Ed. 833 (1858).19 Visingardi v. Tirone, Fla.1966, 193 So.2d 601; Holl v. Talcott, Fla.1966, 191 So.2d ...
  • Tank Tech, Inc. v. Valley Tank Testing, L.L.C.
    • United States
    • Florida District Court of Appeals
    • April 20, 2018
    ...593, 595 (Fla. 2d DCA 1991) (citing Williams v. Fla. Realty & Mgmt. Co., 272 So.2d 176 (Fla. 3d DCA 1973) ); see also Visingardi v. Tirone, 193 So.2d 601, 604 (Fla. 1966) (explaining that party opposing summary judgment is not required "to make out his whole case before his affidavit is adm......
  • Request a trial to view additional results
1 firm's commentaries
  • Using Florida’s Amended Summary Judgment Standard in Litigation
    • United States
    • LexBlog United States
    • August 1, 2022
    ...could not possibly prove her case, and not because she had simply failed to come forward with evidence doing so.” Visingardi v. Tirone, 193 So. 2d 601, 605 (Fla. 1966). The result was an unreasonably heavy burden on movants, which prolonged litigation and consumed judicial and party resourc......
2 books & journal articles
  • 1-5 Third Predicate: Attorney's Negligence as Proximate Cause of Loss
    • United States
    • Full Court Press Florida Legal Malpractice Law Title Chapter 1 Basics
    • Invalid date
    ...the motion, is under no obligation to put in evidence showing such causal relationship," as Ms. Reed has done. Visingardi v. Tirone, 193 So.2d 601, 604 (Fla. 1966).268 1-5:2.3 Client Caused Damages If the client is the cause of the damages, the attorney will not be held liable.269 In Goodwi......
  • A Primer on Florida's New Summary Judgment Standard.
    • United States
    • Florida Bar Journal Vol. 95 No. 4, July 2021
    • July 1, 2021
    ...rule can be traced back to the Florida Supreme Court's decisions in Holl v. Talcott, 191 So. 2d 40 (Fla. 1966), and Visingardi v. Tirone, 193 So. 2d 601 (Fla. 1966). In Holl, the court held that the movant in a motion for summary judgment has the burden of conclusively "proving a negative, ......

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