Weems v. Dawson, 75-2298

• Decision Date: 15 November 1977
• Docket Number: No. 75-2298,75-2298
• Citation: 352 So.2d 1196
• Parties: Wade S. WEEMS, M.D., E. Costatino, Jr., M.D., Weems-Costatino, P.A., and Hartford Accident and Indemnity Company, Appellants, v. Barbara DAWSON, Administratrix of the Estate of Jack Dawson, Deceased, Henry L. Kaye, Esquire, Administrator of the Estate of Von D. Mizell, M.D., Deceased, North Broward Hospital District, etc., et al., Appellees.
• Court: Florida District Court of Appeals

Page 1196

352 So.2d 1196

Wade S. WEEMS, M.D., E. Costatino, Jr., M.D., Weems-Costatino, P.A., and Hartford Accident and Indemnity Company, Appellants, v. Barbara DAWSON, Administratrix of the Estate of Jack Dawson, Deceased, Henry L. Kaye, Esquire, Administrator of the Estate of Von D. Mizell, M.D., Deceased, North Broward Hospital District, etc., et al., Appellees.

No. 75-2298.

District Court of Appeal of Florida, Fourth District.

Nov. 15, 1977.

Larry A. Klein, West Palm Beach, and Pyszka, Kessler, Adams & Solomon and Saunders, Curtis, Ginestra & Gore, Fort Lauderdale, for appellants.

Robert Orseck, of Podhurst, Orseck & Parks, Miami, and Susan Goldman, Miami, and Simons & Schlesinger, Hollywood, for appellees.

DOWNEY, Judge.

After a jury verdict in favor of the defendants/appellants in a medical malpractice case, the trial judge granted appellee a new trial. That order granting a new trial is the subject of this appeal.

Jack Dawson, appellee's decedent, while working on a construction site, fell one story and landed on a wheelbarrow, causing internal injuries. Dawson was admitted to North Broward Hospital on September 25, 1972, by Dr. Von D. Mizell who assumed the general responsibility and management of the patient throughout his hospital stay. During the course of treatment Dr. Mizell requested consultation with a general surgeon, Dr. Oscar S. Lenit, Jr., and with a firm of urologists, Weems and Costatino, P.A. On September 28, 1972, Drs. Weems and Costatino determined that surgery was indicated and on that day Dawson's right kidney was removed. The evidence is clear that Dawson continued to have some internal bleeding after the operation, as well as some external bleeding at the operative site. The negligent conduct charged against all of the defendants in this case was asserted to have taken place during the days immediately following the kidney removal. However, this appeal involves only defendants Weems & Costatino. The companion cases are Case Nos. 76-32, 76-33, 76-40 and 76-189, Fla.App., 352 So.2d 1200.

The appellee adduced evidence from several expert witnesses to prove that Drs. Weems and Costatino were negligent in not operating on Dawson a second time during the several days after the kidney removal and prior to his death on October 3, 1972, because all of the signs indicated that Dawson was experiencing severe internal bleeding. Appellee's witnesses maintained that, based upon those signs, Dawson's only chance to survive was a second operation in order to locate the source of the bleeding and stop it. These experts testified that appellants failed to meet the usual and customary standards of care under the same or similar circumstances and in the same or similar community.

It was appellants' position that, since Dawson had developed a serious blood coagulation disorder following the first operation, a second operation would have been very risky. It was their judgment that it was safer to treat Dawson with blood transfusions and hope the internal bleeding would eventually cease. Several experts testified on behalf of the appellants that their treatment was not negligent because the blood coagulation disorder precluded another operation.

The jury returned a verdict in favor of the appellants, but the trial court granted a new trial, stating in his order:

"(T)he verdict of the jury in the instant case shocks the judicial conscience of this Court so that the Court is of the opinion that said verdict was based upon passion, prejudice, sympathy or some other consideration outside of the evidence, or that the jury failed to understand, weigh or consider the force and credibility of the evidence or failed to follow or understand the charges of this Court, and the Court having carefully considered the principles set forth in the matters of Cloud v. Fallis (Fla.), 110 So 2nd 669, Russo v. Clark (Fla.), 147 So 2nd 1, Pittman v. Smith (Fla.App.), 252 So 2nd 279 and Hubbard v. Brown (Fla.App.), 262 So 2nd 267 and being of the opinion that this Court therefore is duty bound to set aside the verdict of this jury and to grant the plaintiff a new trial upon the ground that said verdict was contrary to the manifest weight of the evidence . . . ."

This appeal is from that order.

Appellants contend that the trial judge erred in granting appellee a new trial because there was substantial competent evidence in the record to support the jury verdict. There appears much to be said for the wisdom of the argument that, if jury verdicts mean anything, a trial judge should not be authorized to grant a new trial where there is substantial competent evidence to support the verdict. But, while it is not at all clear when a trial judge can be held in error for granting a new trial, the cases do seem uniform now in holding that the existence of substantial competent evidence supporting the jury verdict in the record does not preclude the trial judge from granting a new trial, Cloud v. Fallis, 110 So.2d 669 (Fla.1959); Dubois Fence & Garden Co. v. Stevens, 296 So.2d 116 (Fla. 1st DCA 1974); and Danek v. Hoffman, 189 So.2d 893 (Fla. 2d DCA 1966).

Turning to the principles applicable to the trial court's consideration of a motion for new trial, we know from the leading case of Cloud v. Fallis, supra, that:

"When a motion for new trial is made it is directed to the sound, broad discretion of the trial judge, Poindexter v. Seaboard Air Line R. Co., Fla., 56 So.2d 905, Mead v. Bentley, Fla., 61 So.2d 428, who because of his contact with the trial and his observation of the behavior of those upon whose testimony the finding of fact must be based is better positioned than any other one person fully to comprehend the processes by which the ultimate decision of the triers of fact, the jurors, is reached, . . . " 110 So.2d at 673.

Furthermore, judicial discretion has been defined as:

" 'The power exercised by courts to determine questions to which no strict rule of law is applicable but which, from their nature, and the circumstances of the case, are controlled by the personal judgment of the court.' " Castleweed International Corporation v. LaFleur, 322 So.2d 520, 522 (Fla.1976).

Thus, one attacking an order...