Marks v. MandelMarks v. Mandel
This is an appeal by Morty Marks, as personal representative of the estate of his son, Michael Marks, from a final judgment entered upon an adverse jury verdict. We affirm the directed verdict in favor of appellees Baum and Allstate Insurance Company and reverse and remand for a new trial on all issues pertinent to the remaining appellees.
This cause arose out of a tragic accident in which the deceased was shot in the chest when the World War II vintage handgun his friend was using misfired. The accident occurred at 1:20 p.m. and the rescue unit was at the scene by 1:50 p.m. The paramedics contacted Palmetto General Hospital (the closest hospital to the accident site) at 2:00 p.m. Dr. Richard Mandel, a third year orthopedic resident who was working as the on duty emergency room doctor that day, instructed the rescue unit to bring Marks to Palmetto General. Dr. Mandel did not attempt to contact the on call thoracic surgeon at that time because he believed that Marks had an injury to the right lung with the bleeding coming from either the lung itself or a blood vessel beneath the rib and that treating the wound would require only minor surgical procedures.
Marks arrived at Palmetto General at 2:20 p.m. and at that point Dr. Mandel realized that a thoracic surgeon was needed. The first call was made to a thoracic surgeon at 2:20 p.m. For a variety of reasons an available thoracic surgeon was
The personal representative filed a wrongful death action against Baum, alleging that he negligently entrusted the handgun, which he knew to be dangerous, to Marks’ friend.2 The personal representative also filed suit against Palmetto General Hospital and Dr. Ira Bloomfield who had contracted with Palmetto General to run the emergency room, alleging 1) that they were responsible for the failure of the on call system to produce a thoracic surgeon in a timely fashion and 2) that they were vicariously liable for Dr. Mandel‘s failure to diagnose the injury as serious when he was first contacted by the paramedics. The complaint alleged that as a result of Dr. Mandel‘s failure to diagnose the seriousness of the injury, the search for an available thoracic surgeon was delayed for at least twenty minutes. Finally, the personal representative filed suit against Dr. Mandel personally, alleging that he should have tried to contact a thoracic surgeon immediately upon receipt of the paramedics’ report at 2:00 p.m., or that he should have sent Marks directly to Jackson Memorial Hospital, which, at the time this accident occurred, was the only hospital in Dade County with a fully staffed trauma center.3
The cause was tried before a jury. At the close of Marks’ case the trial court granted a partial directed verdict in favor of Palmetto General and Dr. Bloomfield on the agency issue, ruling as a matter of law that neither defendant was responsible for the failure of the on call system to produce a thoracic surgeon in a timely manner. Because the jury found no negligence on the part of Dr. Mandel, the issue of the vicarious liability of Palmetto General and Dr. Bloomfield was obviated. This appeal ensued.
Appellant raises several issues on appeal. As his first point, appellant argues that it was error for the trial court to exclude as evidence Palmetto General‘s emergency room policy and procedure manual. We agree. The manual sets out in detail how the on call system should operate. In a section entitled “Emergency Room Coverage” the manual states:
Emergency medical care is provided by but not limited to the following:
1). An Emergency Room contract physician with specialty consultation within thirty (30) minutes.
Further sections, entitled “Response to Calls,” detail when and how often the emergency room personnel will attempt to contact a physician, either by telephone or by page and, significantly, what future action will be taken against a doctor who fails to respond. Additionally, the manual contains a section on patient transfers to Jackson Memorial Hospital. Since appellant‘s complaint alleged negligence in both the failure of the on call system to produce a thoracic surgeon within thirty minutes and the failure of the hospital staff to send
Appellant‘s second issue concerns the partial directed verdict entered in favor of Palmetto General and Dr. Bloomfield on the issue of the failure of the on call system to produce a thoracic surgeon in a timely fashion. Again, we agree that this was error. Appellees Palmetto General and Bloomfield assert that there can be no vicarious liability imposed on them because appellant did not allege that any of the surgeons who finally responded committed any negligent acts. We do not believe that is the issue. Rather, the issue concerns who is going to assume ultimate responsibility for the entire on call system, a system which was designed and operated by the hospital and the doctor who contracted to run the emergency room, when that system fails. Extensive trial testimony proved that the local and national standard for on call systems is to have a specialist actually attending to the patient within thirty minutes of the call to the physician. Palmetto General had a published policy which adopted this standard. In the case at bar, however, the fact that a thoracic surgeon eventually attended to Marks was a matter of coincidence and not a result of the on call system. The system failed. A jury should decide whether the failure was a breach of the standard of care owed to Michael Marks, see
The other points raised on appeal merit only brief attention. First, Dr. West was fully competent to testify as an expert under
Finally, we hold that the court erred, under the circumstances of this particular case, in limiting the number of expert witnesses that plaintiff could call.
Reversed and remanded with instructions.