TALLAHASSEE MEM. REG. MED. CTR. INC. v. MeeksTALLAHASSEE MEM. REG. MED. CTR. INC. v. Meeks
Roosevelt Randolph and Harold M. Knowles of Knowles & Randolph, and Larry K. White, Tallahassee, for appellees.
ERVIN, Judge.
This is an appeal from a judgment for damages entered against the defendants/appellants in a medical malpractice action. We affirm as to all points raised.
On October 4, 1979, at 8:33 p.m., Baker and Allen, paramedics employed by appellant Tallahassee Memorial Regional Medical Center (TMRMC), were called to the home of five-year-old Sheronda Meeks. The paramedics determined that no emergency health care was needed and did not transport Sheronda to the hospital; neither did they consult with a physician about her condition. Sheronda died during the night of congestive heart failure. A jury verdict resulted in a final judgment in the approximate amount of $248,000.
Appellants raise four points on appeal. First, appellants argue that the trial court erred in overruling their objection to the testimony of Dr. Ketchum, a pathologist, concerning the decedent‘s pre-death symptoms, on the ground that Dr. Ketchum was not qualified to express an opinion in this regard. Dr. Ketchum testified on direct examination that a patient could possibly suffer pain, shortness of breath, vomiting, fever, and rapid heart beat associated with a cardiac problem. On cross-examination, Dr. Ketchum was asked whether he would defer to a cardiologist as to the pre-death symptoms in this case. Dr. Ketchum responded: “May I explain what we‘re doing, to try to — We‘re trying to determine the cause of death. I can‘t go
In the absence of a clear showing of error, a trial judge‘s determination of admissibility should not be disturbed on review. Buchman v. Seaboard Coast Line R.R. Co., 381 So. 2d 229, 230 (Fla. 1980). There are two elements to be considered when admitting expert testimony: the subject must be beyond the common understanding of the average layman, and the witness must have such knowledge as “will probably aid the trier of facts in its search for truth.” Id. Clearly these two criteria were met in the instant case. Appellant relies upon several cases which stand for the prоposition that once an expert testifies that he or she is not qualified, it is error to admit the opinion. See, e.g., Machado v. Foreign Trade, Inc., 478 So. 2d 405 (Fla. 3d DCA 1985), disapproved on other grounds, Cheek v. McGowan Elec. Supply Co., 511 So. 2d 977 (Fla. 1987); Warriner v. Doug Tower, Inc., 180 So. 2d 384 (Fla. 3d DCA 1965), cert. denied, 192 So. 2d 493 (1966), cert. denied, 386 U.S. 999, 87 S. Ct. 1321, 18 L. Ed. 2d 349 (1967). Nevertheless, these cases are factually distinguishable from the one at bar, because Dr. Ketchum did not testify that he was not qualified to testify regarding pre-death symptoms. Obviously, due to his education and experience, a рathologist is qualified to testify to more than merely what he directly observes on autopsy, and can properly opine regarding events preceding death. See Johnson v. State, 423 So. 2d 614 (Fla. 1st DCA 1982). Moreover, where reasonable people can differ as to the propriety of the action taken by the trial court, it cannot be said that the trial сourt abused its discretion. Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980). Abuse exists only where no reasonable person would take the view adopted by the trial court. Id. Certainly, that is not the situation here. Because the trial court did not abuse its discretion in permitting the testimony of Dr. Ketchum to be admitted, its ruling as to the first issue is affirmed.
Next, appellants argue that the trial court erred in рermitting the use of appellant Baker‘s incident report for impeachment purposes. Paramedic Baker testified at trial that no one had informed her of Sheronda‘s heart murmur. She testified that she had made a misstatement on the “run report” when she wrote, “Doctor told them [the family] patient had `heart murmur and heart beats tоo fast.‘” For the purpose of impeaching her testimony, appellee asked Baker whether she had written an incident report the following day and made the same mistake when she stated therein: “We asked her [Sheronda‘s] mother if the doctor could have said that the patient had a heart murmur, and she replied `Yes.‘” The incident report itself was never introduced into evidence.
Appellant argues that admissibility of the incident report is controlled by
Appellants also argue that
Third, appellants argue that the trial court erred in denying TMRMC‘s motion for directed verdict on Count II of the complaint, which allegеd affirmative negligence by TMRMC in failing to properly supervise, train, and instruct the paramedics. As there was competent, substantial evidence that TMRMC deviated from the 1979 standard of care in training and supervising its paramedics, the trial court properly denied the motion for directed verdict. Dr. Pararo, TMRMC‘s director of emergency medical services, testified that there was no written procedure on how to take a history or how to distinguish between an emergency and non-emergency situations. Nor was there any written distinction between taking a child‘s and an adult‘s vital signs. According to Dr. Pararo, TMRMC depended upon the paramedics’ prior schooling and experience gained on the job to learn these things. Appellant‘s expert, Dr. Lee, testified that there were a few national standards on paramedic training programs set up by the United States Department of Transportation, but that the situation varied from state to state. Doctors Lee and Tabb testified that the local dirеctor of emergency services was responsible for developing procedures. In fact, Dr. Tabb stated that TMRMC deviated from the standard of care by not having established such written procedures. We agree with the trial court that there was sufficient testimony on this issue to send the case to the jury.
Appellants’ final argument is that the triаl court erred in denying their motion (filed following the entry of the verdict against them) to limit their liability to no more than $100,000, on the ground that because they were members of the Florida Patient‘s Compensation Fund, which was not joined as a party defendant, the plaintiffs were limited in their recovery to no more than $100,000, as provided for in
768.54. Limitation of liability and patient‘s compensation fund.
* * * * * *
(2) LIMITATION OF LIABILITY.
(a) All hospitals shall, unless exempted under paragraph (c), and all health care providers other than hospitals may pay the yearly fee and assessment or, in cases in which such hospital or health cаre provider joined the fund after the fiscal year had begun, a prorated assessment into the fund pursuant to subsection (3).
(b) A health care provider shall not be liable for an amount in excess of $100,000 per claim or $500,000 per occurrence
for claims covered under subsection (3) if the health care provider had paid the fees required pursuant to subsection (3) for the year in which the incident occurred for which the claim is filed, and an adequate defense for the fund is provided, and pays at least the initial $100,000 or the maximum limit of the underlying coverage maintained by the health care provider on the date when the incident occurred for which the clаim is filed, whichever is greater, of any settlement or judgment against the health care provider for the claim in accordance with paragraph (3)(e). A health care provider may have the necessary funds available for payment when due, or an adequate defense for the fund may be provided by the following: * * * * * *
(e) The limitation of liability afforded by the fund for a participating hospital or ambulatory surgical center shall apply to the officers, trustees... . However, the limitation of liability afforded by the fund for a participating hospital shall apply to house physicians, interns, employed physicians in a resident training program, or physicians perfоrming purely administrative duties for the participating hospitals other than the treatment of patients. This limitation of liability shall apply to the hospital or ambulatory surgical center and those included in this subsection as one health care provider. (Emphasis added.)
(3) PATIENT‘S COMPENSATION FUND.
(a) The fund. — There is created a “Florida Patient‘s Compensation Fund” for the purpose of paying that portion of any claim arising out of the rendering of or failure to render medical care or services, or arising out of activities of committees, for health care providers... . The fund shall be liable only for payment of claims against health care providers who are in complianсe with the provisions of paragraph (2)(b), of reasonable and necessary expenses incurred in the payment of claims, and of fund administrative expenses.
This statute is one which describes the proper relationship between the fund and members of the fund. It is a statute in derogation of the common law — as a consequence it must be сonstrued strictly. The limitation of liability provided in this section is clearly, by the express terms of subsection (2)(e), a limitation afforded by the fund to a participating hospital. It is not a limitation of liability provided to the fund or the participating hospital vis-a-vis an injured plaintiff. In other words, it is a limitation between the parties to the contract dеscribed in
This same statute provides, in subsection (3)(e):
(e) Claims Procedures.
1. Any person may file an action against a participating health care provider for damages covered under the fund, except that the person filing the claim shall not recover against the fund unless the fund was named as a defendant in the suit.
(Emphasis added.)
By the express terms of this provision, joinder of the fund is permissive. One might argue from reading only
We find nothing in any of the Florida Supreme Court decisions construing
We acknowledge that there is language in the Third District‘s opinion in Mercy Hosp., Inc. v. Menendez, 371 So. 2d 1077, 1079 (Fla. 3d DCA 1979), appeal dismissed and cert. denied 383 So. 2d 1198 (1980), stating that аn injured plaintiff must join the fund if he or she seeks to recover a judgment in excess of the statutory limits: “We hold that the plaintiffs have the burden of making the Fund a party in any suit where recovery is sought against a health care provider in excess of $100,000.00... .” In our judgment this statement is erroneous because, as we previously stated,
Appellants also rely upon the recently decided opinion in Higley v. Florida Patient‘s Compensation Fund, 525 So. 2d 865 (Fla. 1988), in support of its limitation of liability position. However, if anything, Higley supports the appellee‘s argument, rather than appellants‘, because Higley was directed to the issue of the classes of persons who are afforded coverage by the fund (rather than those whose liability is limited). See Id. at 866. Indeed, as the case reflects, a subsequent revision of this statute substituted the term “coverage” for “limitation of liability.” Id. at 867 fn. 1. Thus, while the appellants Baker and Allen are covered by the fund as employees of the hospital — if the hospital is properly a member of the fund — nevertheless, this contrаctual benefit to them in no way affects the rights of the plaintiffs/appellees herein.
Finally, even if
For all of the above reasons, the judgment below is AFFIRMED.
WENTWORTH, J., concurs.
BOOTH, J., dissents.