Ward v. Orange Memorial Hospital Ass'n, Inc.

• Decision Date: 30 December 1966
• Docket Number: Nos. 12,13,s. 12
• Citation: 193 So.2d 492
• Court: Florida District Court of Appeals
• Parties: Ruby WARD, as Administratrix of the Estate of Fred R. Ward, Deceased, Appellant, v. ORANGE MEMORIAL HOSPITAL ASSOCIATION, INC., a non-profit Florida corporation, Appellee. Ruby WARD, widow, Appellant, v. ORANGE MEMORIAL HOSPITAL ASSOCIATION, INC., a non-profit Florida corporation, Appellee.

Page 492

193 So.2d 492

Ruby WARD, as Administratrix of the Estate of Fred R. Ward, Deceased, Appellant, v. ORANGE MEMORIAL HOSPITAL ASSOCIATION, INC., a non-profit Florida corporation, Appellee.

Ruby WARD, widow, Appellant, v. ORANGE MEMORIAL HOSPITAL ASSOCIATION, INC., a non-profit Florida corporation, Appellee.

Nos. 12, 13.

District Court of Appeal of Florida, Fourth District.

Dec. 30, 1966.

Rehearing Denied Jan. 20, 1967.

Russell Troutman, of Fishback, Davis, Dominick & Troutman, Orlando, for appellant.

Roe H. Wilkins, of Maguire, Voorhis & Wells, Orlando, for appellee.

WALDEN, Judge.

This consolidated appeal is brought by plaintiff from orders granting a new trial upon the issues of damages.

Plaintiff's husband, Fred R. Ward, died as a result of being transfused with the wrong type blood while being given prostate surgery in defendant's hospital.

Plaintiff brought two negligence actions against defendant. They were consolidated for trial. One sought damages in her capacity as administratrix of her husband's estate under authority of F.S.A. § 45.11. It resulted in a verdict in the sum of $50,000.00. The other sought damages as the widow of decedent under authority of Chapter 768, F.S.A. It resulted in a verdict in the sum of $125,000.00.

The trial court considered the usual post-trial motions. The outcome of the liability issues was approved, but new trials were ordered upon the damage issues.

The appealed orders contained the general predicates which indicate that a jury verdict is about to be set aside. For instance, we note that the judicial conscience was shocked; that the jury was influenced by passion, prejudice, sympathy or other matters outside the evidence; that the verdicts were grossly excessive; that the jury did not understand the charge or, if they did, they disregarded it; and that horror prevented a fair and impartial consideration. Such opinions or premises must find a basis in the record, as otherwise an abuse of discretion is indicated. See Cobb v. Brew, Fla.App.1963, 155 So.2d 814. See also Russo v. Clark, Fla.1962, 147 So.2d 1; Mansell v. Eidge, Fla.App.1965, 179 So.2d 624; Park v. Belford Trucking Co., Fla.App.1964, 165 So.2d 819; Bell v. Tarvin, Fla.App.1964, 163 So.2d 300; Bailey v. Sympson, Fla.App.1963, 148 So.2d 729.

The appealed orders went further to mention certain specific improper acts and influences that formed the basis for the trial court's conclusions and which operated to spawn the grossly excessive verdicts. In fairness, we note the orders containing the specific findings were entered about 22 days following trial, with the trial court not having the benefit of a transcript of testimony in recalling the trial incidents. The summarized wrongs immediately followed by our assessments are as follows:

A. Plaintiff's counsel made a 'Golden Rule' closing argument.

A Golden Rule argument may constitute reversible error. Its thrust is to ask the jury to put themselves in plaintiff's shoes in deciding the amount of damages. See Magid v. Mozo, Fla.App.1961, 135 So.2d

772; Bullock v. Branch, Fla.App.1961, 130 So.2d 74. The argument in question was:

'Now, you heard Mr. Troutman's ideas about what Mrs. Ward's losses will be. She has been reasonable. I would hate to think my wife would think I was worth less, if my death were caused under these circumstances, so no one knows, gentlemen, and only you in your consideration of this case can resolve the question of what amount of money under the law will most reasonably compensate Mrs. Ward for her--for her losses.'

Defendant did not object to it. We do not think it was improper or that it constituted a Golden Rule argument under the mentioned cases or any other authority of which we are aware.

B. Dorothy Blake, a nurse is defendant's hospital, testified so as to introduce the matter of the hospital's insurance coverage into the trial.

The record does not disclose that Dorothy Blake ever made any reference, directly or indirectly, to insurance. Possibly, it was intended to refer to the testimony of Roberta Briggs, the nurse in charge of the blood bank laboratory. Defendant's counsel attempted to impeach her during the course of cross-examination. He sought to have her admit to a certain statement which obviously had been made to an insurance company investigator. The witness evinced difficulty recalling the particular occasion and events. Finally, defendant's counsel indicated the statement was taken by one Jack Snead and asked further:

'Q: Do you recall talking to him?

'A: No, sir. It was quite a long time ago.

'Q: You don't remember?

'A: I don't remember the name.

'Q: You remember somebody talking to you?

'A: I remember talking to an insurance person. Now, I can't tell you his name.'

No objection was made to this mention and this was the only reference to insurance in the record that we could find. It was elicited as the clearly foreseeable response to defendant's question, with plaintiff being in nowise responsible. In sequence, we do not think the mention was harmful. If it was, it should have been brought to the court's attention for easy instruction cure. Finally, in the posture of things, even assuming it to be harmful, we do not see how it can be treated as inuring to defendant's benefit inasmuch as the mention was the sure fruit of defendant's interrogation.

C. The majority of decedent's pain and suffering was caused by the operation and not the faulty blood transfusion.

There is no support for this conclusion in the record. The record reveals abundant substantial competent evidence to the contrary. The period from transfusion to death was 17 days. For instance, one medical expert said that pain from the prostate operation would only exist for a period of 24 to 48 hours following surgery. Another said that everything done for decedent during the period was directly related to the blood mismatch.

D. The horror of talking about blood and mismatching during a four day trial prevented the jury from being fair and impartial.

We must confess that we do not know how a trial such as this could be conducted without a goodly amount of testimony about blood and the effect of a mismatch of same upon the human body and we would wonder how the situation might be remedied on re-trial. We assume that the court correctly ruled as to relevance and materiality, in receiving the testimony and exhibits and we would assume further that upon a new trial the same testimony and exhibits would be proffered with the same result. Thus, we do not believe that this litem is a worthy basis for ordering a new trial, particularly since we are unable to discover any improper or undue emphasis as to these features.

The four points just listed lend themselves to exact survey. Finding no merit in them, we now look to the record in gross to see if we can discover any sufficient basis for the court's cancellation of the damage awards and the court's announced opinion as to the execessiveness, shocked conscience and prejudice.

Decedent entered defendant's hospital for routine prostate surgery. He was in good health with a table life expectancy of 14-plus years at trial--16 years from time of death. Plaintiff, his wife, had a longer expectancy. He was not apprehensive or in distress and expected to be discharged in 4 or 5 days. During surgery a tragic mistake happened with two pints of Type A, instead of Type O, blood being used in a transfusion. The almost inevitable aftermath of kidney failure and uremic poisoning took place. It would serve little purpose to detail the massive and varied program of constant treatment inaugurated during the course of the seventeen days that elapsed between the mismatched blood transfusion and decedent's death. Decedent was visited continuously with severe pain, suffering and apprehension, he being conscious almost to the moment of his death.

In sum, with reference to the administratrix' action and verdict rendered therein for $50,000.00 for decedent's pain and suffering, we find no basis whatever to support the court's action in ordering a re-trial of damages. This issue was properly submitted to the jury and their return indicates no violation of instructions or excess. We do not deem the award made excessive in the light of the testimony adduced. Neither is it excessive compared to awards made in other cases. Of course, comparisons of the injuries suffered and the awards granted in other cases cannot be made with wholly satisfactory results. However, the case of Florida East Coast Railway Company v. Stewart, Fla.App.1962, 140 So.2d 880, awarded $100,000.00 for 6 days of extreme pain and suffering. A Federal District Court case, Legare v. United States, D.C.S.D.Fla.1961, 195 F.Supp. 557, applying Florida Statutes for the wrongful death of a woman who, too, had died because of a major mismatch of blood and lived for 20 days, 17 of them while she was conscious, awarded $25,000.00 to her administrator for her 'moderate' pain and suffering. The court, in justifying the award, said:

'* * * She was highly toxic and did not suffer extreme physical pain most of the time. But she was in constant and conscious discomfort and moderate pain nearly all the remaining time. She knew she was in extremis for a number of days. * * *' 195 F.Supp. at 561.

We have the same reaction as just cited with reference to the widow's action. But there is one additional factor. Here, the court indicated 'the pecuniary loss for loss of support and dower when reduced to its present value would be no greater than $25,000.00 and an award of $100,000.00 for loss of companionship for this lady in connection with the marriage has no reason or justification'.

There are additional factors, as mentioned in the court's charge, which the jury could consider in addition to that listed by the trial court in the appealed order. For example, there are the factors of her loss of services, their marital relationship and their station in society, each of...