ALEJANDRO MEDINA AND ZULEMA MEDINA, INDIVIDUALLY AND AS THE PARENTS AND NEXT FRIENDS OF JAVIER MEDINA, A MINOR, APPELLANTS,
v.
VARIETY CHILDREN'S HOSPITAL, A FLORIDA CORPORATION AND MT. SINAI HOSPITAL OF GREATER MIAMI, INC., ET AL., APPELLEES
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The court held that improper rulings on evidentiary matters and attorney conduct before the jury necessitate a new trial.
[1] Disciplinary actions against attorneys should be conducted outside the presence of the jury.
[2] Medical treatises are inadmissible to bolster a physician's testimony on direct examination.
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Join FLexlaw to unlock all legal intelligenceA jury awarded damages for an infant's injuries resulting from medical negligence. The appellate court reviewed several errors made during the trial.…
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PER CURIAM.
A jury awarded damages of $25,000 to an infant and one parent for substantial injuries suffered by the infant as a result of medical negligence. The jury verdict and final judgment must be set aside because the record affirmatively demonstrates that the verdict was improper or that the jury was influenced by considerations outside the record. It is also apparent that the jury was deceived as to the force and credibility of the evidence owing to improper rulings on evidentiary matters. We address briefly some of the errors committed so that they will not be repeated in a new trial.
First, when a trial judge believes that an attorney’s conduct is improper, it is error for him to criticize or take any disciplinary action against the attorney in the presence of the jury. Instead, such action should be taken only at a side bar conference out of the hearing of the jury, or upon excusing the jury. Florida Motor Lines Corporation v. Barry, 158 Fla. 123, 27 So. 2d 753 (1946); Seaboard Coast Line Railroad Co. v. Wiesenfeld Warehouse Co., 316 So. 2d 567 (Fla. 1st DCA 1975), cert. denied, 328 So. 2d 846 (Fla.1976); Skelton v. Beall, 133 So. 2d 477 (Fla. 3d DCA 1961).
Second, medical treatises cannot be used to bolster the testimony of a physician on direct examination. See Tallahassee Memorial Regional Medical Center v. Mitchell, 407 So. 2d 601 (Fla. 1st DCA 1981); see also § 90.706, Fla.Stat. (1981).
Finally, at least as to defendant Variety Children’s Hospital, plaintiff should have been permitted to call Dr. Meneia, a physician/agent of that hospital, as an adverse witness so as not to be bound by the witness’s unfavorable testimony. See Smith v. Fortune Insurance Co., 404 So. 2d 821 (Fla. 1st DCA 1981).
Because the errors already addressed require a new trial, we need not discuss the more difficult issue, i.e., that the jury verdict was an impermissible compromise. It is extremely unlikely that another jury will return a similar verdict on retrial.
Reversed and remanded for a new trial on issues of liability and damages.
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Botte v. Pomeroy, 497 So. 2d 1275 (Fla. 4th DCA 1986)…tatus was an issue at the trial, this factor also supports Botte’s claim that Edwards could have been called as an adverse party. A non-party employee of a named party may be called as an adverse party witness. Medina v. Variety Children’s Hospital, 438 So. 2d 138 (Fla. 3d DCA 1983). In light of the factual conflicts between what Edwards said on the stand and in deposition, and the relevance of these conflicts to the critical issues at trial of agency and Edwards’ actions and knowledge at the time he allegedl…
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Erwin v. Todd, 699 So. 2d 275 (Fla. 5th DCA 1997)…en v. Goldberg, 630 So. 2d 606 (Fla. 4th DCA 1993); Chorzelewski v. Drucker, 546 So. 2d 1118 (Fla. 4th DCA 1989); Quarrel v. Minervini, 510 So. 2d 977 (Fla. 3d DCA 1987), rev. denied, 519 So. 2d 987 (Fla.1988); Medina v. Variety Children’s Hospital, 438 So. 2d 138 (Fla. 3d DCA 1983); Tallahassee Memorial Regional Medical Center v. Mitchell, 407 So. 2d 601 (Fla. 1st DCA 1981). Over objection, defense counsel was permitted to question Dr. Urbach regarding this article. Dr. Urbach was also able to read portions…
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Avis Quarrel v. Donald Minervini, M.D., 510 So. 2d 977 (Fla. 3d DCA 1987)…ich alone, on the facts of this case, would not have been grounds for reversal. [*978] Medical treatises cannot be used to bolster the testimony of a physician on direct examination. § 90.706, Fla.Stat. (1985); Medina v. Variety Children’s Hospital, 438 So. 2d 138 (Fla. 3d DCA 1983). Reversed and remanded for a new trial.…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fla. Motor Lines Corp. v. Barry, 158 Fla. 123 (Fla. 1946)
- Tallahassee Mem'l Reg'l Med. Ctr. & Fla. Patients' Comp. Fund v. Mitchell, 407 So. 2d 601 (Fla. 1st DCA 1981)
- Vinson Skelton & Alterman Transp. Lines, Inc. v. Beall, 133 So. 2d 477 (Fla. 3d DCA 1961)
- Seaboard Coast Line R.R. Co. v. Wiesenfeld Warehouse Co., 316 So. 2d 567 (Fla. 1st DCA 1975)
- Smith v. Fortune Ins. Co., 404 So. 2d 821 (Fla. 1st DCA 1981)