Visingardi v. Tirone, s. 64-595

• Decision Date: 03 August 1965
• Docket Number: 64-596,Nos. 64-595,s. 64-595
• Citation: 178 So.2d 135
• Parties: Joseph VISINGARDI, Appellant, v. Antonio TIRONE, Shelby Bogess, and St. Francis Hospital, Inc., a Florida nonprofit corporation, Appellees.
• Court: Florida District Court of Appeals

Page 135

178 So.2d 135

Joseph VISINGARDI, Appellant, v. Antonio TIRONE, Shelby Bogess, and St. Francis Hospital, Inc., a Florida nonprofit corporation, Appellees.

Nos. 64-595, 64-596.

District Court of Appeal of Florida, Third District.

Aug. 3, 1965.

Rehearing Denied Sept. 10, 1965.

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

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

Taylor, Brion, Buker, Hames & Greene and Hoffman, Kemper & Johnson, Miami, for St. Francis Hospital.

Dean & Adams, Miami, for Bogess.

Before HENDRY, C. J., and CARROLL and BARKDULL, JJ.

BARKDULL, Judge.

By this consolidated appeal, the appellant [plaintiff in the trial court] seeks review of two summary final judgments in favor of the appellee, Antonio Tirone, a medical doctor, and the appellee, St. Francis Hospital, Inc. His complaint sounded in tort, alleging malpractice in the treatment of his late wife which resulted in her death.

The principal affidavit relied on by the plaintiff, in opposition to the motion for summary judgment, was one executed by Dr. Graubard, a New York physician. The appellant urges that the trial court committed error in that (a) the affidavit of Dr. Graubard affirmatively demonstrated negligence on the part of the doctor and the hospital; (b) there was a material issue as to informed consent; and (c) it failed to apply the doctrine of res ipsa loquitur.

The affidavit of Dr. Graubard was stricken from the file upon a motion alleging that it was insufficient by failing to contain statements which would be admissible at the time of the trial, and by failing to disclose that the doctor was familiar with the local standard in the community. We approve the striking of the affidavit upon the principle that it failed to contain sufficient allegations that would have been entitled to be admitted into evidence at the time of trial. See: Evans v. Borkowski, Fla.App.1962, 139 So.2d 472; Harrison v. Consumers Mortgage Company, Fla.App.1963, 154 So.2d 194; Rule 1.36(e), Florida Rules of Civil Procedure 30 F.S.A. It appears that the affidavit of this doctor amounts to no more than a conclusion or speculation similar to the one discussed in the recent case of Holl v. Talcott, Fla.App.1965, 171 So.2d 412, involving the same doctor. The affidavit did not connect the cause of death to any specific negligence charged to the doctor. It is understandable why the doctrine of res ipsa loquitur was relied upon heavily by the appellant, because under this principle it would not be necessary to show the causal connection necessary to hold the doctor liable. Undoubtedly, malpractice actions are difficult to prove but, under the law, doctors are not ensurers of the success of their work. It appears that the trial judge would have been in error in striking the affidavit solely upon the ground of the failure of the doctor to state familiarity with local community standards. See: Montgomery v. Stary, Fla.1955, 84 So.2d 34; Cook v. Lichtblau, Fla.App.1962, 144 So.2d 312; Kolesar v. United States, S.D.Fla.1961, 198 F.Supp. 517. However, if the action of the trial judge can be sustained upon any theory, it should not be interfered with. See: Berkman v. Miami National Bank, Fla.App.1962, 143 So.2d 535; Crudele v. Cook, Fla.App.1963, 165 So.2d 424; In re Estate of Schor, Fla.App.1965, 172 So.2d 888 (opinion filed March 9, 1965).

In support of his argument that there was a conflict as to informed consent, the appellant cites Bowers v. Talmage, Fla.App.1963, 159 So.2d 888; Russell v Harwick, Fla.App.1964, 166 So.2d 904. The appellee doctor responds that these cases involve the failure of consent in its entirety. It is admitted, in the instant cause, that the consent for the operative procedures was, in fact, given. Without evidence as to the standard prevailing in the community, there was nothing before the trial judge to demonstrate an issue as to the breach of the duty in the community as to the matter of 'informed' consent.

We specifically reject the contention that the doctrine of res ipsa loquitur is applicable in malpractice cases, in accordance with the following authorities: Foster v. Thornton, 125 Fla. 699, 170 So. 459; Grubbs v. McShane, 144 Fla. 585, 198 So. 208; Hine v. Fox, Fla.1956, 89 So.2d 13; Crovella v. Cochrane, Fla.App.1958, 102 So.2d 307. Finding the error urged by the appellant to be not well taken as to the appellee doctor, the summary final judgment in his favor will not be disturbed.

No error has been made to appear in the summary final judgment for the hospital. The record was devoid of any evidence to indicate any failure on the appellee hospital to measure up to the community standard.

In his reply brief, the appellant relies heavily upon a recent case of the Second District Court of Appeal of Florida [Matarese v. Leesburg Elks Club, Fla.App.1965, 171 So.2d 606] and quotes as follows:

'A moving party, to be entitled to a summary judgment, has the burden of showing that the facts which would warrant judgment in his favor under applicable substantive law are indisputable. 6 Moore's Federal Practice, § 56.13 P. 2093 (2d ed. 1953). Whoever has the burden of proof will lose if he fails to sustain it. Steinberg v. Adams, D.C.S.D. New York, 1950, 90 F.Supp. 604, 608.'

It is the position of counsel for the appellant that this statement requires the moving party to sustain the burden of proof to prevail on a summary judgment hearing. We do not so read the opinion. The first sentence quoted above relates to the burden to show absence of triable issues, citing 6 Moore's Federal Practice § 56.13 (2d ed. 1953). The second sentence of the quotation states that the one who has the 'burden of proof' (on summary judgment) will lose if he fails to sustain it. With due deference to the court in the second district which decided the Matarese case, it would appear that the court there inadvertently substituted the phrase 'burden of proof' for 'burden on the motion.' We feel that this is so because the burden assumed by a party who moves for summary judgment is not a burden of proof such as is shouldered by a plaintiff in the trial of a case, but is a burden to establish absence of genuine triable issues and that movant is entitled to judgment as a matter of law.

In the recent case of Harvey Building, Inc. v. Haley, Fla.1965, 175 So.2d 780, the Supreme Court of Florida, speaking through Chief Justice Thornal, clearly outlined the burden assumed by or imposed upon the moving party on a motion for summary judgment, and stated the extent and limits of the showing required of the movant and that required of the opposing party in response thereto. We deem this recent pronouncement of the Supreme Court to be sufficiently helpful in this connection to justify its repetition here. It was as follows (175 So.2d at 782-783):

'A movant for a summary judgment has the burden of demonstrating that there is no genuine issue on any material fact. Rule 1.36(c) F.R.C.P., 30 F.S.A. All doubts regarding the existence of an issue are resolved against the movant, and the evidence presented at the hearing plus favorable inferences reasonably justified thereby are liberally construed in favor of the opponent. A summary judgment motion will be defeated if the evidence by affidavit or otherwise demonstrates the existence of a material factual issue. To defeat a motion which is supported by evidence which reveals no genuine issue, it is not sufficient for the opposing party merely to assert that an issue does exist. If the moving party presents evidence to support the claimed non-existence of a material issue, he will be entitled to a summary judgment unless the opposing party comes forward with some evidence which will change the result--that is, evidence sufficient to generate an issue on a material fact. Connolly v. Sebeco, Inc., Fla., 89 So.2d 482; Barron and Holtzoff, Federal Practice and Procedure (Wright Edition), Vol. 3, Section 1235. When analyzed in this fashion the summary judgment motion may be categorized as a 'pre-trial motion for a directed verdict.' At least it has most of the attributes of a directed verdict motion. Locke v. Stuart, Fla.App., 113 So.2d 402.

'The initial burden, therefore, is upon the movant. When he tenders evidence sufficient to support his motion, then the opposing party must come forward with counter-evidence sufficient to reveal a genuine issue. The movant, however, does not initially carry the burden of exhausting the evidence pro and con, or even examining all of his opponent's witnesses. To fulfill his burden he must offer sufficient admissible evidence to support his claim of the non-existence of a genuine issue. If he fails to do this his motion is lost. If he succeeds, then the opposing party must demonstrate the existence of such an issue either by countervailing facts or justifiable inferences from the facts presented. If he fails in this, he must suffer a summary judgment against him.'

Moore's Federal Practice likens a motion for summary judgment prior to trial to a motion for directed verdict at time of trial, although indicating a stronger burden on a defendant when moving for a summary judgment than when moving for a directed verdict. ¹ To the same effect is the recent opinion of Harvey Building, Inc. v. Haley, supra.

Therefore, for the reasons stated above, the summary final judgments here under review are hereby affirmed.

Affirmed.

CARROLL, Judge (concurring in part and dissenting in part).

I concur in the affirmance of the summary judgment entered for the defendant hospital, St. Francis Hospital, Inc., in appeal No. 64-595.

I dissent from the majority judgment in appeal No. 64-596, which affirms the summary judgment in favor of the defendant Dr. Antonio Tirone. I agree with the majority holding that res ipsa loquitur was inapplicable. My dissent is because in my opinion it was reversible error for the trial...