AMPARO BORGES, APPELLANT,
v.
JEROME F. JACOBS, D.P.M. AND JEROME F. JACOBS, D.P.M., P.A., APPELLEES
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A jury award of damages less than undisputed medical expenses, when the jury found defendants negligent, is inadequate as a matter of law and requires a new trial.
[1] A jury verdict awarding damages less than undisputed medical expenses reasonably and necessarily incurred as a result of defendants' negligence is inadequate as a matter…
[2] A pre-existing condition cannot be a legal cause of damages incurred for subsequent hospitalization necessitated by an infection resulting from a defendant's negligent tr…
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Join FLexlaw to unlock all legal intelligenceA jury found defendants negligent and awarded plaintiff $26,000 in damages, which was less than her undisputed medical expenses of $74,000. The defend…
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PER CURIAM.
Where, as in this case, a jury found the defendants to be a negligent cause of a plaintiff’s damages, but returned an award of damages less than the plaintiff’s undisputed medical expenses reasonably and necessarily incurred as a result of the defendants’ negligence, the verdict is inadequate as a matter of law, and a new trial is required. Gross v. Lee, 453 So. 2d 495 (Fla. 1st DCA 1984); Grier v. Reed, 426 So. 2d 1132 (Fla. 1st DCA 1983); Hector v. Florida Farm Bureau Mutual Insurance Co., 364 So. 2d 1253 (Fla. 2d DCA 1978); McNash v. Oxenhandler, 288 So. 2d 304 (Fla. 4th DCA 1974); Meana v. St. Petersburg Kennel Club, Inc., 279 So. 2d 329 (Fla. 2d DCA 1973); 1661 Corp. v. Snyder, 267 So. 2d 362 (Fla. 1st DCA 1972). See also Griffis v. Hill, 230 So. 2d 143 (Fla.1969); Thornburg v. Pursell, 446 So. 2d 713 (Fla. 2d DCA 1984); Ledbetter v. Todd, 418 So. 2d 1116 (Fla. 5th DCA 1982); Stevens v. Mt. Vernon Fire Insurance Co., 395 So. 2d 1206 (Fla. 3d DCA 1981); Anderson v. Chirogianis, 384 So. 2d 1289 (Fla. 5th DCA 1980), cert. discharged, 401 So. 2d 1322 (Fla.1981); Rodriguez v. Allgreen Corp., 242 So. 2d 741 (Fla. 4th DCA 1971).
We reject the defendants’ contention that the evidence rationally supports the jury’s determination that only $26,000 of the plaintiff’s $74,000 in medical expenses were reasonably and necessarily incurred, and, implicitly, that some $48,000 of these expenses are attributable to some reason unconnected to the events giving rise to this action. The defendants’ argument that the jury could reasonably have concluded that the plaintiff’s circulatory deficiency, rather than the defendant’s treatment of her foot, was the cause of the plaintiff’s post-treatment hospitalization ignores the undisputed fact that the plaintiff’s circulatory deficiency (as well as her diabetic condition) was a pre-existing condition which provided the very reason that the surgery performed by the defendant was contraindicated at the outset. Once Dr. Jacobs went forward with the surgery in the face of the pre-existing circulatory deficiency and caused an infection which would not heal because of the circulatory deficiency, it is legally impossible that the circulatory deficiency could be found to be a legal cause of the expenses incurred for the subsequent hospitalization necessitated by the infection. See Vendola v. Southern Bell Telephone & Telegraph Co., 474 So. 2d 275 (Fla. 4th DCA 1985) (plaintiff’s purported suicide attempt merely a pre-existing condition and therefore not a legal cause of damage in action charging telephone company with negligence in failing to respond to plaintiff’s request for an ambulance); Metropolitan Dade County v. Colina, 456 So. 2d 1233 (Fla. 3d DCA 1984), rev. denied, 464 So. 2d 554 (Fla.1985) (defendant’s failure to repair inoperative stoplight merely a pre-existing condition and therefore not a legal cause of damage sustained by plaintiff in intersection collision); Whitehead v. Linkous, 404 So. 2d 377 (Fla. 1st DCA 1981) (plaintiff’s suicide attempt merely a pre-ex-isting condition and therefore not a legal cause of damage in medical malpractice action charging emergency room physician with negligence in failing to save plaintiff’s life).
The defendants’ additional post-hoc rationalization of the jury verdict, namely, that the plaintiff, during the course of her post-operative infection, suffered an acute circulatory deficiency different in type and kind from her pre-existing chronic condition, flies in the face of the concurring cause instruction which the jury was bound to follow and which
“correctly reflects the ... 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,’ such as [plaintiff’s] pre-existing physiological and anatomical status.... ” Goodman v. Becker, 430 So. 2d 560, 561 (Fla. 3d DCA 1983) (footnote omitted).
Accord Tilley v. Broward Hospital District, 458 So. 2d 817 (Fla. 4th DCA 1984); Higgins v. Johnson, 434 So. 2d 976 (Fla. 2d DCA 1983); Marrero v. Salkind, 433 So. 2d 1224 (Fla. 3d DCA 1983), rev. denied, 444 So. 2d 418 (Fla.1984).
And finally, no inference that the two post-treatment hospitalizations for surgery were unnecessary can be drawn from evidence that they were unsuccessful in combating the infection. Proof that these hospitalizations were unnecessary must come in the form of testimony of a medical expert, and no such proof is contained in this record. Where, as here, the liability of the defendants is not unequivocally established, and the inadequate damage award represents a possible compromise verdict on the issue of liability, a new trial on all issues is required. See, e.g., Timmy Woods Beverly Hills, Ltd. v. Greenwald, 475 So. 2d 256 (Fla. 3d DCA 1985); Gross v. Lee, 453 So. 2d 495 (Fla. 1st DCA 1984); 1661 Corp. v. Snyder, 267 So. 2d 362 (Fla. 1st DCA 1972); Rodriguez v. Allgreen Corp., 242 So. 2d 741 (Fla. 4th DCA 1971); Duquette v. Hindman, 152 So. 2d 789 (Fla. 1st DCA 1963). This is especially so where plaintiff’s counsel concedes, indeed requests, that any retrial should be on all issues. See Thompson v. Fields, 292 So. 2d 612 (Fla. 4th DCA 1974).
Reversed and remanded for a new trial on all issues.
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Newalk v. Fla. Supermarkets, Inc., 610 So. 2d 528 (Fla. 3d DCA 1992)…of medical bills may reflect a compromise verdict, a new trial on all issues is mandated. See Lindenfield v. Dorazio, 606 So. 2d 1255 (Fla. 4th DCA 1992); Broward County School Bd. v. Dombrowsky, 579 So. 2d 748 (Fla. 4th DCA 1991); Borges v. Jacobs, 483 So. 2d 773 (Fla. 3d DCA 1986); Timmy Woods Beverly Hills, Ltd. v. Greenwald, 475 So. 2d 256 (Fla. 3d DCA 1985) (where damage award was clearly inadequate and liability was hotly contested, suggestion of compromise verdict arose, requiring new trial on liabilit…
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Calloway v. Dania JAI Alai Palace, Inc., 560 So. 2d 808 (Fla. 4th DCA 1990)…that verdict unless it failed to consider all elements of her damages. Jury verdicts have been held inadequate in any number of cases where the award is equal to or less than the uncontro-verted medical bills. See Griffis v. Hill; Borges v. Jacobs, 483 So. 2d 773 (Fla. 3d DCA 1986); Skelly v. Hartford Casualty Insurance Co., 445 So. 2d 415 (Fla. 4th DCA 1984); Rodriguez v. Allgreen Corp., 242 So. 2d 741 (Fla. 4th DCA 1971). The record reveals that Calloway suffered permanent injury, pain and suffering, and…
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Rivera v. Gaspar Aldrich, 538 So. 2d 1390 (Fla. 3d DCA 1989)…e jury to consider all of the elements of damages submitted, and not as a result of a compromise by the jury on the issue of liability. 1661 Corporation v. Snyder, 267 So. 2d 362, 364 (Fla. 1st DCA 1972) (footnote omitted); accord Borges v. Jacobs, 483 So. 2d 773, 775 (Fla. 3d DCA 1986); Timmy Woods Beverly Hills, Ltd. v. Greenwald, 475 So. 2d 256, 257-58 (Fla. 3d DCA 1985). [*1392] In the present case liability was not unequivocally established. No eyewitnesses to the accident testified at trial. When the v…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (24 total)
- Chirogianis v. Anderson, 401 So. 2d 1322 (Fla. 1981)
- Griffis v. Hill, 230 So. 2d 143 (Fla. 1969)
- The 1661 Corp. v. Snyder, 267 So. 2d 362 (Fla. 1st DCA 1972)
- Metro. Dade Cnty. v. Colina, 456 So. 2d 1233 (Fla. 3d DCA 1984)
- Tilley v. Broward Hosp. Dist., 458 So. 2d 817 (Fla. 4th DCA 1984)
- Rodriguez v. Allgreen Corp., 242 So. 2d 741 (Fla. 4th DCA 1971)
- Thornburg v. Pursell, 446 So. 2d 713 (Fla. 2d DCA 1984)
- Timmy Woods Beverly Hills, Ltd. v. Greenwald, 475 So. 2d 256 (Fla. 3d DCA 1985)
- Duquette v. Ira Eugene Hindman, Jr., 152 So. 2d 789 (Fla. 1st DCA 1963)
- Anderson v. Chirogianis, 384 So. 2d 1289 (Fla. 5th DCA 1980)