JOSEPH L. GOODMAN AND JAN GOODMAN, APPELLANTS,
v.
MELVIN BECKER, D.D.S., APPELLEE
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The court held that the trial court erred by refusing to give the standard jury instruction on concurrent causes.
[1] A jury instruction on concurrent causes is required when there is competent expert testimony that a defendant's negligence operated in combination with a natural cause to…
[2] A wrongdoer remains liable for a consequent harm when the result is caused by a congruence of their own negligent act with a natural force or condition.
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Join FLexlaw to unlock all legal intelligencePlaintiffs sued an oral surgeon for malpractice after the patient suffered a stroke following an operation under general anesthesia. The plaintiffs' t…
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SCHWARTZ, Chief Judge.
The appellant Goodman suffered a severe stroke after an operation conducted under general anesthesia by Dr. Becker, an oral surgeon, in his office. Goodman and his wife sued Becker for alleged malpractice.1 They now appeal from a judgment entered for the doctor upon a jury verdict in his favor. We reverse.
The plaintiffs’ basic position at trial, supported by competent expert testimony to that effect, was that Goodman’s circulatory and hypertensivé problems, as manifested by symptoms of which Becker was or should have been aware, rendered it inadvisable and negligent to perform the operation, and that the stroke was caused by the effect of the procedure, particularly the anesthesia, acting upon and combined with the plaintiff’s pre-existing physical condition. We agree with the plaintiffs’ primary appellate contention that this testimony2 entitled them to the standard jury instruction on concurrent causes which was rejected by the trial court. The variation of SJI 5.1 b3 which applies to these facts, as requested below, was as follows:
Negligence may be a legal cause of .... injury .. . even though it operates in combination with .. . some natural cause ... if such other cause occurs at the same time as the negligence and if the negligence contributes substantially to producing such loss, injury or damage, [e.s.]
It is undisputed that this charge correctly reflects the equally unassailable principle that a wrongdoer remains liable for a consequent harm when the result is caused by a congruence of his own negligent act with a natural force or condition, often called an “Act of God,”4 such as Goodman’s pre-ex-isting physiological and’anatomical status. Davis v. Ivey, 93 Fla. 387, 112 So. 264 (1927); 57 Am.Jur.2d Negligence § 181 (1971); 65 C.J.S. Negligence § 115 (1966). Moreover, there is no doubt that the failure to give an applicable concurring causes instruction constitutes reversible error.5 Clooney v. Geeting, 352 So. 2d 1216 (Fla. 2d DCA 1977); Little v. Miller, 311 So. 2d 116 (Fla. 4th DCA 1975); Ruiz v. Cold Storage & Insulation Contractors, Inc., 306 So. 2d 153 (Fla. 2d DCA 1975), cert. denied, 316 So. 2d 286 (Fla.1975); compare, Caputo v. Taylor, 403 So. 2d 551 (Fla. 1st DCA 1981) (SJI 5.1 b properly refused only because, unlike this case, there was no evidence that physician’s conduct had contributed to or aggravated plaintiff’s condition). These cases are controlling here. On their authority, the judgment is reversed for a new trial.
Reversed and remanded.
. Including a claim that informed consent had not been secured.
. Since the right to a jury instruction arises when there is any evidence to support it, Corbett v. Dade County Board of Public Instruction, 372 So. 2d 971 (Fla. 3d DCA 1979), cert. denied, 383 So. 2d 1192 (Fla.1980), the acknowledged existence of contrary testimony on these points — to the effect that the doctor was not negligent and that the stroke would have occurred anyway — is immaterial.
. The entire standard instruction, with all its possible permutations, states:
b. Concurring cause:
In order to be regarded as a legal cause of [loss] [injury] [or] [damage], negligence need not be the only cause. Negligence may be a legal cause of [loss] [injury] [or] [damage] even though it operates in combination with [the act of another] [some natural cause] [or] some other cause if such other cause occurs at the same time as the negligence and if the negligence contributes substantially to producing such [loss] [injury] [or] [damage], [e.s.]
. Thus, the defendant’s final argument suggested that the Almighty alone was responsible for the plaintiffs condition:
It was inevitable ... God decided that on August 22nd at five o’clock in the afternoon Mr. Goodman was going to have that stroke.
.In the absence of 5.1 b, defendant’s counsel was able, with the apparent approval of the court, effectively to argue that the Goodmans had to establish that Dr. Becker — apparently rather than God, see n. 4 supra — had actually caused the stroke:
Why it occurred then as opposed to the 21st or the 25th, 1 don’t know.
I don’t think anybody knows that, but it didn’t occur because of what Dr. Becker had done.
The plaintiffs have to prove to you to your satisfaction that Dr. Becker’s treatment, his anesthesia, and his treatment caused that stroke to occur and if they don’t prove that to you to your satisfaction, you must bring back a verdict for the defendant.
The very significance of SJI 5.1 b is, however, as the committee note states, that it “negates the idea that a defendant is excused from the consequences of his negligence by reason of some other cause concurring in time and contributing to the same damage.”
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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Stahl v. Metro. Dade Cnty., 438 So. 2d 14 (Fla. 3d DCA 1983)…damage].” It should be noted, however, that this instruction is not limited to cases where the “but for” test arguably fails as the instruction is plainly applicable as well to a broader class of concurring cause cases. See e.g., Goodman v. Becker, 430 So. 2d 560 (Fla. 3d DCA 1983). . For a representative sampling of Florida cases applying the “foreseeability” test to intervening cause cases, see: Gibson v. Avis Rent-A-Car System, Inc., 386 So. 2d 520 (Fla.1980); Vining v. Avis Rent-A-Car Systems, Inc., 354…
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Tilley v. Broward Hosp. Dist., 458 So. 2d 817 (Fla. 4th DCA 1984)…standard jury instruction 5.1(c)2 on intervening negligence, which was given. If evidence adduced at trial creates an issue, litigants have the right to have the trial court instruct the jury on the law applicable to that issue. Goodman v. Becker, 430 So. 2d 560, 561 n. 2 (Fla. 3d DCA 1983); Caputo v. Taylor, 403 So. 2d 551, 554 (Fla. 1st DCA 1981); Ruiz v. Cold Storage and Insulation Contractors, Inc., 306 So. 2d 153, 154 (Fla. 2d DCA 1975). The standard for reviewing the failure to give a jury instruction…1 / 2
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Reyka v. Halifax Hosp. Dist., 657 So. 2d 967 (Fla. 5th DCA 1995)…not done so, it might have created reversible error. See Auster; Marinetti v. Grace, 608 So. 2d 833 (Fla. 4th DCA 1992), rev. denied, 620 So. 2d 761 (Fla.1993); Banks; Tilley; Higgins v. Johnson, 434 So. 2d 976 (Fla. 2d DCA 1983); Goodman v. Becker, 430 So. 2d 560 (Fla. 3d DCA 1983). AFFIRMED. DAUKSCH and GOSHORN, JJ., concur. . These health care providers include Halifax Hospital District d/b/a Halifax Medical Center, James Henson, M.D., Halifax Emergency Physicians, Meek, Freír, M.D.P.A., Michael P. Harr…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Davis v. Ivey, 93 Fla. 387 (Fla. 1927)
- Clooney v. Geeting, 352 So. 2d 1216 (Fla. 2d DCA 1977)
- Howard v. State, 306 So. 2d 153 (Fla. 1st DCA 1975)
- Ruiz v. Cold Storage & Insulation Contractors, Inc., 306 So. 2d 153 (Fla. 2d DCA 1975)
- In the Interest of J. W. P. v. State, 311 So. 2d 116 (Fla. 1st DCA 1975)
- Corbett v. Dade Cnty. Bd. OF Pub. Instruction, 372 So. 2d 971 (Fla. 3d DCA 1979)
- Fort Walton Roofing & Maint. Co., Inc. v. The Shelby Mut. Ins. Co., 372 So. 2d 971 (Fla. 1st DCA 1979)
- State v. Ware, 316 So. 2d 286 (Fla. 1975)
- Cold Storage & Insulation Contractors, Inc. v. Ruiz, 316 So. 2d 286 (Fla. 1975)
- Caputo v. Taylor, 403 So. 2d 551 (Fla. 1st DCA 1981)