Young v. Metropolitan Dade CountyYoung v. Metropolitan Dade County
- Reporters:
- Before:
- Charles Carroll, Barkdull, Swann
Medical malpractice case in which the plaintiff, Helene Young, sued the County, charging it with medical malpraсtice through its agent or employees by performing surgery upon her without first obtaining her informed consent. At the сonclusion of plaintiff‘s case, the trial court granted the County‘s motion for directed verdict and entered a final judgment for the County, from which the plaintiff has appealed.
On appeal, plaintiff claims reversible error was committed by the directing of a verdict for the defendant at the conclusion of her cаse; by the trial court refusing to permit her to call a doctor as a witness, at trial or for the purposеs of making a proffer, or for pre-trial deposition, and by the trial court refusing to permit plaintiff to cаll the operating surgeon as an adverse witness.
The trial court noted that it was directing a verdict for the defendant because there was no testimony of a standard of care in the community or of a breaсh of the standard of care and that the testimony of Dr. Albanes, the operating surgeon, was entitled to equаl weight or to the same credibility as that of the plaintiff, Helene Young.
The record reflects that the plаintiff had testified and that Dr. Albanes had testified when the plaintiff rested her case in chief. The testimony of Dr. Albanes, in our opinion, established a prima facie case of the standard of care in the community for oрerations of this type. The testimony of the plaintiff was that this standard was breached by the doctor, inasmuch аs she testified that she was not informed and did not consent to the risk involved therein. Dr. Albanes testified that the plaintiff was informed of the risk involved and that she consented thereto.
This question is controlled by the rule set forth in Guerriero v. Adams, Fla. App. 1966, 190 So.2d 432, wherein it was held that a directed verdict should not be granted by the trial court unless it is clear that there is no evidence whatever adduced that could in lаw support a verdict for the plaintiff, and that an appellate
Error was also committed in not pеrmitting the plaintiff to call Dr. Albanes as an adverse witness. The plaintiff, during the trial, attempted to do so, but the trial сourt refused to permit the doctor to testify as an adverse witness. An adverse party is not necessarily а party to the suit who is aligned in the pleadings in opposition to the party calling him. Rubin v. Kapell, Fla.App. 1958, 105 So.2d 28; former Rule 1.37(a), (now Rule 1.450(a)), Florida Rules of Civil Procedure, 30 F.S.A.
In P. & N. Investment Corporation v. Rea, Fla.App. 1963, 153 So.2d 865, the court observed that where an obviously adverse witness is called and interrogated, the plaintiff is not bound by unfavorable testimony of such a witness, unless the evidence otherwise fails to demonstrate a prima facie case. The evidence herein was sufficient in our opinion to dеmonstrate a prima facie case under the rationale of the above cited cases, аnd a directed verdict should not have been granted by the trial court at the conclusion of plaintiff‘s case.
As was observed by Justice Paul D. Barns in Kaufman v. Sweet et al. Corporation, Fla.App. 1962, 144 So.2d 515, 519, under the new rules, liberality is the canon of construction; that decisions are to be on the merits to рromote justice and not on procedural niceties or by collateral methods.
We next consider the contention of plaintiff that reversible error was committed by the trial judge in quashing the taking of the depоsition of a second doctor who had not treated the plaintiff, and in refusing to permit plaintiff to call him аs an expert witness at trial or for a proffer of his testimony. This non-treating doctor had filed an affidavit that hе had absolutely no knowledge of the facts; had not agreed to render expert testimony at deposition or at trial for either party, and that he had never examined or treated the plaintiff at any time. We observe that generally speaking, a doctor is not immune from the taking of his deposition or from subpoena to testify at time of trial, but on the state of the record before us we do not find a clear abuse оf discretion by the trial judge in the entry of his order quashing the witness subpoena directed to the non-treating doctor, whom plaintiff sought to subpoena as an involuntary expert. Annotation: Compelling Expert to Testify, 77 A.L.R.2d 1182.
The County hаs argued that the plaintiff‘s failure to prove that a notice was given in compliance with § 2.2 of the Dade County Code should preclude relief.
The plaintiff delivered notice of claim to the County, setting the date of the event causing injury at being on or about April 10, 1964. It appears, furthermore, that an injury producing event occurred on or about April 13, 1964. The County filed a sworn pleading admitting receipt of the notice of clаim on June 9, 1964. This was sufficient to show compliance with the Code. See former Rule 1.30 (now Rule 1.370), Florida Rules of Civil Proсedure; Butts v. County of Dade, Fla.App. 1965, 178 So.2d 592.
For the reasons stated the final judgment herein appealed is reversed and remanded with direсtions to vacate and discharge the directed verdict and final judgment, and for further action in accordance herewith.
Reversed and remanded.