Somer v. JohnsonSomer v. Johnson
The plaintiff-appellant, Martha Somer, filed this diversity action for damages in the United States District Court for the Middle District of Florida against the defendants, Dr. Charles Johnson, Dr. Aquiles Ascencios and the Sarasota County Public Hospital Board. She alleged that the doctors were negligent in mistakenly diagnosing her abdominal pain as an ulcer, rather than a diverticulum, thereby resulting in unnecessary surgery. She also attributed negligence to the hospital in the selection and supervision of the physicians. During the trial, the district court directed a verdict favorable to the hospital and the jury returned a verdict for the two doctors.
Thereafter, Somer filed a motion for a new trial, asserting several grounds of error in the conduct of the trial. The district court denied the motion. She renews those contentions on appeal.
I.
Somer first challenges the correctness of the district court‘s instructions to the jury pertaining to the legal standard of care applicable to health care providers under Florida law. The initial part of the instruction detailed the standard set forth in
[p]hysicians are not held liable, however, for honest errors of judgment. They are allowed a wide range in the exercise of their judgment and discretion. To hold a physician liable, it must be shown that the course which he pursued was against the course recognized as correct by his profession.
Trial Transcript at 1435-36. Somer complains that this quoted segment of the charge is overly confusing and that it states a duty of care which conflicts with the norm outlined in the statute. In reviewing her contention, the inquiry is essentially twofold. First, we must determine whether the instruction accurately delineates the substantive law of Florida. If not, then we must decide as a matter of federal procedure if the instruction rises to the level of reversible error. E.g., Van Cleef v. Aeroflex Corp., 657 F.2d 1094, 1099 n. 12 (9th Cir.1981); Bartak v. Bell-Galyardt & Wells, Inc., 629 F.2d 523, 528 (8th Cir.1980); Wright v. Albuquerque Auto-Truck Stop Plaza, Inc., 591 F.2d 585, 587 (10th Cir.1979); see also Southern Pacific Transportation Co. v. Smith Material Corp., 616 F.2d 111, 113-14 (5th Cir.1980); see generally 5A J. Moore, Moore‘s Federal Practice, p 51.02-1 (2d ed. 1982).
No clear statement of the duty of care imposed on physicians in Florida emerges from the relevant case and statutory authority. Thus, the resolution of the threshold issue requires a careful examination of several developments in that state‘s law governing medical malpractice. The instruction in controversy in this case had its genesis in a 1957 decision, Bourgeois v. Dade County, 99 So.2d 575 (Fla.1957). In that case, the Supreme Court of Florida observed, in dicta, that
the science of medicine is not an exact science. Physicians are not to be held liable for honest errors of judgment and discretion. To hold one liable it must be shown that the course which he pursued was clearly against the course recognized as correct by his profession.
99 So.2d at 577. Based on that language, the intermediate appellate courts of the state consistently approved instructions similar to the one challenged here. See, e.g., Hickman v. Employers’ Fire Insurance Co., 311 So.2d 778 (Fla.Dist.App.1975); Potock v. Turek, 227 So.2d 724 (Fla.Dist.App.1969), cert. denied, 238 So.2d 106 (Fla.1970).
In 1976, the Florida legislature enacted an extensive statutory scheme concerning medical malpractice.
“[T]he accepted standard of care for a given health care provider shall be that level of care, skill, and treatment which is recognized by a reasonably prudent similar health care provider as being acceptable under similar conditions and circumstances.”
See
About the same time, the Florida Supreme Court Committee on Standard Jury Instructions adopted a model instruction relating particularly to medical malpractice. Florida Standard Jury Instructions in Civil Cases 4.2(a) (Supreme Court Committee on Standard Jury Instructions in Civil Cases 1976). The suggested charge is similar to the standard of care declared by the legislature in
[n]egligence is the failure to use reasonable care. Reasonable care on the part of a [physician] is the use of that knowledge, skill and care which is generally used in similar cases and circumstances by [physicians] in communities having similar medical standards and available facilities.
Standard Jury Instructions 4.2(a). However, the Committee not only echoed the standard articulated in the statute, but it also expressly condemned the type of charge given by the district court in this case. According to the Committee, such a charge is “confusing, difficult of application and argumentative.”2 Standard Jury Instructions 4.2(a) comment 1.
Since the adoption of the new legislation and the promulgation of the standard instruction, the Florida intermediate appellate courts have uniformly expressed their disapproval of the older charge.3 For example, in Schwab v. Tolley, 345 So.2d 747, 753 (Fla.Dist.App.1977), the court, citing the Supreme Court Committee‘s note, affirmed a trial court‘s refusal to include the “honest error” instruction. In Webb v. Priest, 413 So.2d 43, 46-47 (Fla.Dist.App.1982), another court examined the correctness of a charge incorporating the “wide range” of discretion language, as well as the “clearly against the course recognized” standard. The trial judge in that case, like the district court here, combined those statements with an instruction similar to the Standard Jury Instruction 4.2(a). 413 So.2d at 46. On appeal, the court concluded that the charges constituted error and, when considered in conjunction with other errors committed during the trial, a cause for reversal. Id. at 46-47. The Florida appellate court characterized the instructions as “confusing in that they suggest conflicting standards of proof ... and ... confusing as to the duty of care owed by the physician.” Id. at 47.
The same Florida District Court of Appeals later reversed a judgment solely on the basis of such a charge. Veliz v. American Hospital, Inc., 414 So.2d 226, 228 (Fla.Dist.App.1982). After giving Standard Jury Instruction 4.2(a), the trial court added the statement that “[t]he practice of medicine is not an exact science and nurses are not to be held liable for honest errors of judgment.” 414 So.2d at 227. Finding the two formulations contradictory, the appellate court observed,
[u]nder the instructions in this case, the jury could have found the defendant not liable because it believed the nurse on duty made an honest mistake of judgment while at the same time it also could have believed her conduct constituted a clear departure from the required standard of care.
Against this background, the defendants characterize the posture of the Florida law in this respect as a direct conflict between the supreme court of that state and the district courts of appeals. Thus, they reason, a federal court sitting in a diversity case is required to follow the pronouncements of the state‘s highest court. See, e.g., Flintkote Co. v. Dravo Corp., 678 F.2d 942, 945 (11th Cir.1982). Here, however, we are confronted with a question never addressed by the Florida Supreme Court, i.e., whether the passage of
In Florida, it is well established that the legislature has the authority to abrogate the common law. E.g., State v. Egan, 287 So.2d 1, 6 (Fla.1973). Abrogation may be implied from an inconsistency between the legislative enactment and the former common law rule. See, e.g., Ripley v. Ewell, 61 So.2d 420, 421 (Fla.1952); see also Wax v. Wilson, 101 So.2d 54, 57 (Fla.Dist.App.1958). The question then becomes whether the scope of the duty established by the statute conflicts with the standard announced in Bourgeois, and reflected in the instructions presently under attack. The intermediate appellate courts of Florida have addressed this problem and concluded that the two expressions are indeed contradictory. See Veliz, 414 So.2d at 228; Webb, 413 So.2d at 47. Without persuasive data that the state‘s highest court would decide otherwise, those decisions are binding on a federal court sitting in a diversity case. See, e.g., King v. Guardian Life Insurance Company of America, 686 F.2d 894, 898 (11th Cir.1982); Flintkote Co., 678 F.2d at 945. In short, we are convinced that
That conclusion does not end the matter. Federal procedural law governs whether an inaccurate instruction necessitates reversal. To determine the prejudicial effect of an incorrect statement of the law, the charge must be viewed in its entirety. See, e.g., Allison v. Western Union Telegraph Co., 680 F.2d 1318, 1323 (11th Cir.1982). “When the instructions, taken together, properly express the law applicable to the case, there is no error even though an isolated clause may be inaccurate, ambiguous, incomplete or otherwise subject to criticism.” Johnson v. Bryant, 671 F.2d 1276, 1280 (11th Cir.1982). To justify a reversal, the court must be “left with a substantial and ineradicable doubt as to whether the jury was properly guided in its deliberations.” Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1372 (5th Cir.1981).
The instruction at issue in this case creates a genuine probability that the jury was in fact misled to the detriment of the plaintiff. The jury could have found, for example, that the defendants failed to exercise the level of care acceptable to a “similar health care provider,” but at the same time, that their mistake, if any, resulted from an “honest error of judgment.” See Veliz, 414 So.2d at 228. The possibility of such a misapplication is enhanced by the language of the instruction. After reciting the correct statutory duty, the trial judge then admonished that “[p]hysicians are not held liable, however, for honest errors of judgment.” Trial Transcript at 1435-36. The use of the word “however” suggests that those statements qualify or relax the standard of liability enunciated earlier. In effect, the very wording of the charge invited the jury to make impermissible alternative findings that the defendants had violated the appropriate standard but conformed to the incorrect one. Under those circumstances, the possibility that the jury may have employed the wrong criterion of liability to exonerate the defendants requires a new trial.5 See Johnson, 671 F.2d at 1281; Gardner v. Wilkinson, 643 F.2d 1135, 1137 (5th Cir.1981).
II.
The remaining assignment of error deals with the district court‘s denial of Somer‘s request for certain documents in the hospital‘s records. During discovery, the plaintiff sought access to various hospital records including the personnel files of Ascencios and Johnson, as well as information concerning the hospital‘s internal reviews. When the hospital refused to produce the requested documents, the plaintiff filed a motion to compel discovery. The district court granted the motion to the extent that it sought production of the doctors’ personnel applications. At the same time, the court denied the request for all written evaluations, relating both to the doctors and to the hospital, on the grounds that such records are privileged under Florida law. See
in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.
Additionally,
The source of the state privilege implicated in this case is
[t]he proceedings and records of committees as described in the preceding subsections shall not be subject to discovery or introduction into evidence in any civil action against a provider of professional health services arising out of the matters which are the subject of evaluation and review by such committee ...
The pertinent “committees” include those bodies “formed to evaluate and improve the quality of health care.”
To the contrary,
Accordingly, the judgment in favor of the hospital is AFFIRMED. The judgment for the doctors, Ascencios and Johnson, is REVERSED and REMANDED for a new trial consistent with this opinion.
Notes
Section 768.45(1) provides, in pertinent part, that
[t]he accepted standard of care for a given health care provider shall be that level of care, skill, and treatment which is recognized by a reasonably prudent similar health care provider as being acceptable under similar conditions and circumstances.
The corresponding portion of the district court‘s instruction echoed that language almost verbatim, merely substituting the term “physician” for the statute‘s more general phrase “health care provider.” Trial Transcript at 1435.