Opinion
No. 3D99-363.
Opinion filed February 23, 2000.
An Appeal from the Circuit Court for Dade County, Steve Levine, Judge, L.T. No. 96-24862.
Spiegel Utrera and Jessica S. Forbes and Julian Sanchez; John J. Spiegel, for appellant.
Sonneborn Rutter Cooney Klingensmith and Mark Klingensmith and William T. Viergever (West Palm Beach), for appellees.
Caruso, Burlington, Bohn Compiani and Philip M. Burlington for The Academy of Florida Trial Lawyers as amicus curaie.
Before JORGENSON, COPE, and LEVY, JJ.
The issue of whether a personal representative can bring an action under Section 400.023 in connection with an infringement of a patient's right that does not lead to the death of the patient is not an issue in this case since the only allegations in the Complaint concerning the infringement of a patient's right relate to a right that the plaintiff/appellant contends led to the patient's death. Accordingly, we need not address that issue. Regarding the medical testimony that the trial court found to be "inadmissable", thereby causing the trial court to enter a directed verdict, we find that the trial court was incorrect (the medical testimony was admissible, although obviously subject to attack on cross examination), but we find that the medical testimony, including that of the medical examiner who performed the autopsy, was legally insufficient to support the claim. Specifically, it was based on speculation and possibilities based upon what the doctor had been told by various family members. The doctor never examined either the patient while she was alive or the medical records of the patient.
Affirmed.