Summary
finding that the plaintiffs presented no competent testimony as to causation
Summary of this case from Posner v. WalkerOpinion
Case No. 4D03-2154.
June 30, 2004. Rehearing Denied August 24, 2004.
Appeal from the Circuit Court, Nineteenth Judicial Circuit, St. Lucie County, Charles E. Smith, Senior Judge.
Arnold R. Ginsberg of Ginsberg Schwartz, Miami, and Andy M. Custer of Alpizar Ville, Palm Bay, for appellants.
Janis Brustares Keyser, Thomas C. Heath, and Michael V. Baxter of Billing, Cochran, Heath, Lyles, Mauro Anderson, P.A., West Palm Beach, for appellee.
We affirm the final judgment finding HCA Health Services of Florida, Inc. not liable for the care and treatment of Davion McKeithan. The trial court did not err in granting HCA's motion for directed verdict for two reasons. First, the plaintiffs presented no competent testimony as to causation, that had the nurses accessed the chain of command, such conduct would likely have led to a different outcome for the patient. Second, under Ewing v. Sellinger, 758 So.2d 1196 (Fla. 4th DCA 2000), the plaintiffs failed to present evidence that the failure of the nurses to access the chain of command would have affected the treatment decisions of the treating physician, who testified at trial.
There was no error in allowing Dr. Menkes to offer a supplemental opinion; the doctor based his opinion in part upon the deposition of another doctor, who testified at trial. The opinions of the other doctor, a pediatric neuroradiologist, are of the type reasonably relied upon by a pediatric neurologist in giving an opinion.
Finally, we find no error in the denial of the plaintiffs' motion for directed verdict on the issue of the supervision of the graduate nurse. HCA presented evidence of supervision sufficient to submit the issue to the jury. The nurses involved testified that although they did not document the extent of their supervisor/graduate nurse relationship, the supervisor was routinely and customarily involved in the care of all patients within the unit.
Although section 90.406, Florida Statutes (2003), does not apply to the routine practice of an individual, it is "left to the court to determine as a matter of circumstantial evidence whether there was sufficient probative value to allow the admission of the habit evidence." CHARLES W. EHRHARDT, FLORIDA EVIDENCE § 406.1, at 255 (2002 ed). The trial court did not err in admitting the nurses' testimony.
AFFIRMED.
POLEN and GROSS, JJ., concur.
KLEIN, J., concurs specially with opinion.
I agree with the majority opinion. I am writing in response to plaintiffs' contention that our opinion in Ewing v. Sellinger, 758 So.2d 1196 (Fla. 4th DCA 2000), which is an alternative basis on which we are affirming, is not well-reasoned. Plaintiffs premise their argument on two opinions of our sister courts which have been critical of Ewing. Munoz v. South Miami Hospital, Inc., 764 So.2d 854 (Fla. 3d DCA 2000); Goolsby v. Qazi, 847 So.2d 1001 (Fla. 5th DCA 2003).
I was on the panel in Ewing, as well as in the companion case of Anderson v. Ewing, 768 So.2d 1161 (Fla. 4th DCA 2000). Although these two appeals arose from the same trial, they were not consolidated in this court and Anderson did not issue until four months after Ewing. In order to have a full understanding of the facts in Ewing, which is being questioned, it is necessary to read Anderson.
It is unnecessary in this case for us to consider whether Ewing was correct, because it is only an alternative basis on which we are affirming. However, I must admit that now, when I read the two opinions together, I am not sure we were correct in Ewing. It is the additional facts contained in Anderson which have caused me to entertain these doubts, and I now wonder if we might have reached a different outcome in Ewing if the subsequent appeal in Anderson had been consolidated with it.
I do not agree that the warning cases cited in Munoz and Goolsby are relevant for the same reasons expressed by Judge Cope in his dissent in Munoz.