ELENA VELIZ AND GILBERTO VELIZ, HER HUSBAND, APPELLANTS,
v.
AMERICAN HOSPITAL, INC., APPELLEE
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The court held that giving conflicting jury instructions on the standard of care for nurses constitutes reversible error.
[1] Giving conflicting jury instructions on the standard of care for nurses constitutes reversible error if it may have misled the jury.
[2] A jury instruction stating that nurses are not liable for honest errors in judgment is confusing and argumentative and should not be given.
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Join FLexlaw to unlock all legal intelligenceA patient fell and injured her back after a nurse left her unattended in the bathroom post-surgery. The jury was given two conflicting instructions re…
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FERGUSON, Judge.
This appeal is taken from a Final Judgment entered on a jury verdict finding that appellee, American Hospital, Inc., was not negligent in a medical malpractice action. The first of two issues raised for our review is whether two instructions given the jury as to the standard of care required of nurses were so conflicting and confusing as to necessitate a new trial. By the second point of this appeal, appellant claims prejudicial error caused by a casual communication between the defense representative and a juror during a luncheon recess. The first issue has merit. The second issue is without merit.
On February 5, 1979, appellant was admitted to American Hospital for foot surgery. On February 6th an operation was performed under general anesthesia. Other medications were subsequently administered post-operatively. On February 7, 1979 at approximately 9:30 A.M. appellant rang the nurse’s bell for assistance. The call was answered by a nurse on duty who helped appellant to the bathroom but then left her alone. While appellant was attempting to undress and wash, she experienced dizziness and fell backwards, injuring her lower back on the bathtub. The question before the jury was whether leaving the appellant in the bathroom unattended, while she was still under the influence of sedative medication, was below the standard of care required by health care providers.
At the conclusion of all the evidence, a charge conference was held at which time defendant requested a special jury instruction 1 which was objected to by appellant. The trial court sustained the objection and indicated that the instruction would not be given. However, the trial court did read the first part of the challenged instruction to the jury, as follows:
The practice of medicine is not an exact science and nurses are not to be held liable for honest errors of judgment.
The instruction given to the jury immediately before the above-challenged instruction was Standard Jury Instruction 4.2(a) which reads:
Negligence is the failure to use reasonable care. Reasonable care on the part of a hospital is the use of that knowledge, skill and care which is generally used in similar cases and circumstances by hospitals in communities having similar medical standards and available facilities.
Appellant contends the instruction is erroneous because it is confusing as to the duty of care owed to the patient and suggests conflicting standards of proof. We agree.
This subject was considered by the Supreme Court Committee on Standard Jury Instructions which thought it deserving of a specific recommendation. That recommendation is found as a note following Standard Jury Instruction 4.2(a) and states:
The Committee recommends that no charge be given to the effect that “a physician is not to be held liable for an honest error in judgment” and that “it must be shown that the course he pursued was clearly against the course recognized as correct by his profession.” The charge is confusing, difficult of application and argumentative.2
The Florida Supreme .Court’s decision in Allstate Insurance Company v. Vanater, 297 So. 2d 293 (Fla.1974) is directly applicable in this case. In it, the Supreme Court held that the trial court’s instruction (however justifiable under the authorities before the trial judge) gave the jury two different standards of proof to apply, thus giving the jury contradictory instructions. The mere giving of two conflicting standards may, without more, constitute reversible error, even though one of the standards correctly applies. Key West Electric Company v. Albury, 91 Fla. 695, 109 So. 223 (1926); Florida East Coast Railway Company v. Jones, 66 Fla. 51, 62 So. 898 (1913). An instruction which tends to confuse rather than enlighten the jury is cause for reversal if it may have misled the jury and caused them to arrive at a conclusion that otherwise they may not have reached. Finch v. State, 116 Fla. 437, 156 So. 489 (1934). See also Schwab v. Tolley, 345 So. 2d 747 (Fla. 4th DCA 1977). Under 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.
Finally, this court recently found error in a trial judge’s giving jury instructions similar to those in this case, on grounds the instructions were confusing and conflicting. Webb v. Priest, 413 So. 2d 43 (Fla.3d DCA 1982).
Reversed and remanded for a new trial.
. Special instruction No. 9 as requested reads as follows (but only the underlined portion was given to the jury):
The practice of medicine is not an exact science and nurses are not to he held liable for honest errors in judgment. They are allowed a wide range in the exercise of their judgment and discretion. To hold a nurse liable it must be shown that the course she pursued by [sic] clearly against the course recognized to be acceptable by her profession.
. Florida Standard Jury Instructions, Supreme Court Committee on Jury Instructions in Civil Cases, Library of Congress, Catalog No. 67-24732, copyright 1981, The Florida Bar.
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Butler v. State, 493 So. 2d 451 (Fla. 1986)…because there exists a reasonable possibility that it contributed to the conviction. See also Florida Power and Light Co. v. McCollum, 140 So. 2d 569 (Fla.1962); Shannon v. State, 463 So. 2d 589 (Fla. 4th DCA 1985); Veliz v. American Hospital, Inc., 414 So. 2d 226 (Fla. 3d DCA), review denied, 424 So. 2d 760 (1982). Any assertion that the errant jury instruction was harmless beyond a reasonable doubt is clearly rebutted when the jury instruction is combined with comments made by the prosecutor during closing…
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Pieczynski v. State, 516 So. 2d 1048 (Fla. 3d DCA 1987)…or was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful. 491 So. 2d at 1139. See also Veliz v. American Hospital, Inc., 414 So. 2d 226 (Fla. 3d DCA) (jury instruction which tends to confuse rather than enlighten jury is cause for reversal if it may have misled jury and caused it to reach a conclusion that it otherwise would not have reached), rev. denied, 424 So. 2d 760 (Fla.1982).…
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Poole v. The Lowell Dunn Co., 573 So. 2d 51 (Fla. 3d DCA 1990)…Francisco Railway Company, 306 So. 2d 575, 578 (Fla. 1st DCA 1975), and constitutes reversible error even though one of the charges was correct. See Allstate Insurance Company v. Vanater, 297 So. 2d 293 (Fla.1974); Veliz v. American Hospital, Inc., 414 So. 2d 226 (Fla. 3d DCA 1982), review denied, 424 So. 2d 760 (Fla.1982); Webb v. Priest, 413 So. 2d 43 (Fla. 3d DCA 1982). As stated by the Florida Supreme Court in Allstate Insurance Company v. Vanater, 297 So. 2d at 295 (citations omitted): The trial court’…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Webb v. Priest, 413 So. 2d 43 (Fla. 3d DCA 1982)
- Mosby Finch and Ralph Stokes v. State, 116 Fla. 437 (Fla. 1934)
- Allstate Ins. Co. v. Vanater, 297 So. 2d 293 (Fla. 1974)
- The Key W. Elec. Co. v. Albury, 91 Fla. 695 (Fla. 1926)
- Schwab v. Tolley, 345 So. 2d 747 (Fla. 4th DCA 1977)
- Fla. E. Coast Ry. Co. v. Jones, 66 Fla. 51 (Fla. 1913)