SCOTT SCHLEY AND FRANCES SCHLEY, HIS WIFE, APPELLANTS,
v.
PALM BEACH MARTIN COUNTY MEDICAL CENTER, INC., A FLORIDA CORPORATION, D. BARRY LOTMAN AND SYNTHES, LTD., APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Scott Schley appealed a summary judgment dismissing his medical malpractice claim arising from a drill bit fragment left in his ankle during ankle fracture surgery. The court reversed the summary judgment against the surgeon (Dr. Lotman) while affirming it against the hospital, holding that unresolved factual issues about the cause of the drill bit failure precluded summary judgment.
The court reversed the summary judgment against the surgeon because he failed to meet his burden of proving the absence of a genuine issue of material fact regarding whether the drill bit broke due to his improper use. The court affirmed the summary judgment against the hospital and held that the presence of the drill bit fragments and admitted complications precluded resolution of the case on summary judgment.
[1] A hospital is entitled to summary judgment when a plaintiff concedes the correctness of that judgment on appeal.
[2] A defendant moving for summary judgment in a medical malpractice case bears the burden of proving the absence of a genuine issue of material fact regarding the alleged ne…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“To secure a summary judgment Dr. Lotman had the burden of proving the absence of a genuine issue of material fact as to the appellants' claim of malpractice.”
Establishes the burden of proof required for summary judgment in medical malpractice cases.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDuring surgery to repair Scott Schley's fractured ankle, Dr. Barry Lotman used a drill bit that broke during the procedure, leaving a portion embedded…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Prima Facie Evidence Of Negligence cases and more on FLexlaw
ANSTEAD, Judge.
This is an appeal from a final summary judgment entered in favor of appellees, a physician and a hospital, on the claim of appellant, Scott Schley, that the appellees negligently caused a portion of a drill bit to break off and remain deposited in appellant’s ankle. At oral argument the appellants conceded the correctness of the summary judgment as to the appellee, Palm Beach Martin County Medical Center, Inc., and we affirm that judgment. However, we reverse the summary judgment on the claim against the appellee, D. Barry Lot-man.
The appellant alleged that Dr. Lotman used the drill bit in an improper fashion during a surgical procedure to reduce appellant’s fractured ankle. In support of his motion for summary judgment Dr. Lotman submitted the affidavit of a physician who expressed an opinion therein that Dr. Lot-man’s “reduction and fixation” of appellant’s fractured ankle was within acceptable medical standards, and that appellant’s present complaints of pain in the ankle were caused by the fracture and the presence of a wire device used to secure the fracture rather than by the drill bit. This physician offered no opinion as to whether the drill bit broke from improper use or some other cause. In sworn answers to interrogatories Dr. Lotman stated that he did not know why the drill bit broke. In those answers he also stated that the healing of appellant’s injury was delayed because of prolonged surgery time. The prolonged surgery time referred to was apparently the extra time consumed in unsuccessfully attempting to retrieve the broken drill bit, and in switching to an alternative means of fixation after the drill bit broke and attempts to utilize a screw to secure the fracture were abandoned.
To secure a summary judgment Dr. Lot-man had the burden of proving the absence of a genuine issue of material fact as to the appellants’ claim of malpractice. Holl v. Talcott, 191 So. 2d 40 (Fla.1966). In this case that meant Dr. Lotman had to demonstrate that there was no issue as to whether the drill bit broke as a result of his improper use of the drill. In our view he failed to sustain that burden. There is no affirmative evidence in the record as to the cause of the failure of the drill bit.1 The lack of evidence on this issue does not establish the absence of a genuine issue as to Dr. Lot-man’s responsibility. Rather, it leaves the issue unresolved.
Dr. Lotman also contends that he was entitled to a summary judgment because the other physician’s affidavit established that the appellant’s present complaints were unrelated to the presence of the drill bit. However, in our view the presence of the drill bit in Mr. Schley’s ankle combined with the admitted complications that resulted from the drill bit breaking preclude a resolution of the case on that basis.
Accordingly, for the reasons set out above the judgment in favor of appellee, D. Barry Lotman, is hereby reversed and the judgment in favor of appellee, Palm Beach Martin County Medical Center, Inc., is hereby affirmed.
HURLEY and DELL, JJ., concur. . Although not cited by any of the parties we note that Section 768.45(4), Florida Statutes (1977) provides that the presence in the body of surgical tools or any paraphernalia commonly used in surgical procedures shall be prima facie evidence of negligence on the part of the physician.