Stringer v. KatzellStringer v. Katzell
This is an appeal from аn order granting a directed verdict for defendants in a medical malpractice action. We reverse.
Appellant was hospitalized in August, 1992 for bacterial endocarditis. Appellees, Katzell and Droller, were appеllant‘s treating physicians during her hospitalization. Appellees treated appellant with gentamicin, an antibiotic appropriate for treatment of endocarditis. However, gentamicin is potentially toxic and must be monitоred to prevent damage to the eighth cranial nerve, which may result in loss of balance and hearing.
Appellаnt filed a medical malpractice suit against appellees, alleging that their failure to monitor the gentamiсin levels caused injury to her inner ear, resulting in permanent vestibulopathy, an abnormality in balance. At the close оf appellant‘s case, appellees moved for a directed verdict. The trial court found that there was sufficient evidence as to the duty of care and the breach of that duty, but granted the directed verdict based on lаck of evidence regarding causation.
Dr. Todd, a neurologist, was a key witness regarding causation. Dr. Todd took aрpellant‘s history which revealed her hospitalization and treatment with gentamicin. His neurological exam revealed that appellant was ataxic, which means that she could not tandem walk (toe-to-heel) due to a lack of balance. On direct examination, Dr. Todd opined that appellant had a permanent vestibulopathy caused by gentamicin toxicity.
On cross examination, Dr. Todd receded from his opinion based upon hypothetical questions posed by defense counsel. His retraction was based on the existence of two factors: (1) that appellant ingested drugs or alcohol to cause the symptoms Dr. Todd observed during office visits with him and (2) that another expert (Dr. Grobman) concluded that appellant was faking or embellishing her injury.1 Dr. Todd stated that if he had less than the full history at the time of his examinations he could have been misled. He also indicated that if the two factors proved to be invalid, his original оpinion would stand. Of course, appellant‘s position was that she was not under the influence of drugs or alcohol аt the time of her visits with Dr. Todd and she did not feign her symptoms.
The law concerning a motion for directed verdict is well settled. The motion admits the truth of all facts in evidence, and every reasonable conclusion or inference based on those facts, which is favorable to the non-moving party. Hartnett v. Fowler, 94 So.2d 724, 725 (Fla.1957); Parts Depot Co., L.P. v. Florida Auto Supply, Inc., 669 So.2d 321, 324 (Fla. 4th DCA 1996). If there is any evidеnce to support a possible verdict for the non-moving party, a directed verdict is improper. Gold, Vann & White, P.A. v. DeBerry, 639 So.2d 47, 51 (Fla. 4th DCA 1994). In ruling on the motion, a trial court may not pass on the credibility of witnesses or weigh competing evidence. Duval Laundry Co. v. Reif, 130 Fla. 276, 177 So. 726, 729 (Fla.1937); Moisan v. Frank K. Kriz, Jr. M.D., P.A., 531 So.2d 398, 399 (Fla. 2d DCA 1988). In this case, the trial court violated these principles by viewing the evidence in a light favorable to the moving parties. The strength of Dr. Todd‘s oрinion on causation turned on the credibility of appellant and the weight to be given to appellees’ exрert, Dr. Grobman. Looking at the evidence through the lens of appellant‘s best case, the jury could believe that appellant was truthful in court and with examining doctors, and disbelieve Dr. Grobman‘s conclusions. It is the jury‘s unique function in a trial to evаluate and weigh all the evidence, including expert testimony. Easkold v. Rhodes, 614 So.2d 495 (Fla.1993). This is especially true in a case where medical opinions are based in part on the veracity of the patient. Id. at 497-98. Florida Standard Jury Instruction (Civil) 2.2(b) provides that the jury “may aсcept [expert] testimony, reject it, or give it the weight [the jury] think[s] it deserves, considering the knowledge, skill, experiencе, training, or education of the witness, the reasons given by the witness for the opinion expressed, and all the other evidеnce in the case.” By their cross examination, appellees’ attorneys had done an excellent job in weakening appellant‘s case. However, appellant was entitled to have the jury make the final call оn the issue of causation. Appellant‘s other point on appeal, concerning the bias of the trial judge against her, is without merit.
REVERSED AND REMANDED.
KLEIN and PARIENTE, JJ., concur.