DEBORAH JANCISKO, F/K/A DEBORAH BURTON PORTER, APPELLANT,

v.

JOSEPH S. LEVY, M.D., JOSEPH S. LEVY, M.D., P.A., AND DR. LYNETTE SIERACKI, APPELLEES

Fla. 3d DCA | 1987-12-01

No. 87-334

Before HENDRY, NESBITT and FERGUSON, JJ.

517 So. 2d 41 Florida District Court of Appeal, Third District (1987) Positive Treatment

Cited by 6 cases

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Holding

The court held that genuine issues of material fact precluded summary judgment in a medical malpractice action.

Facts & Procedural History

Plaintiff sued defendants for medical malpractice, alleging injury from negligent retraction of her brachial plexus during surgery. Expert testimony a…

The full statement of facts, procedural history, and disposition for this case are member content.

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Topics

Standard Of Care Medical Malpractice Genuine Issue Of Material Fact Summary Judgment

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Opinion of the Court

PER CURIAM.

The final summary judgment entered in favor of defendants Joseph S. Levy, M.D., and Lynette Sieracki, D.O., in this medical malpractice action, is reversed. We reach this result because genuine issues of material fact were raised in the record to withstand defendants’ motion for summary judgment.

Expert testimony, supported by discovery on file, questioned the standard of health care services rendered to Deborah Jancisko. The pleadings and depositions also raised substantial fact issues as to whether the injury suffered by Miss Jancis-ko was due to a negligent retraction of her brachial plexus during surgery by doctors Levy and Sieracki. Consequently, whether or not the physicians exercised the required degree of care was a question of fact precluding summary judgment. Holl v. Talcott, 191 So. 2d 40 (Fla.1966); Shores v. Wegmann, 370 So. 2d 87 (Fla. 1st DCA 1979). Where material issues of fact are raised, a resolution by trial is necessary. Public Health Trust of Dade County v. Valcin, 507 So. 2d 596 (Fla.1987); see Atkins v. Humes, 110 So. 2d 663 (Fla.1959). Florida law has long provided:

If the evidence is conflicting or will permit of different reasonable inferences, or if there is evidence tending to prove the issues, it should be submitted to a jury as a question of fact to be determined by it, and not taken from the jury and passed upon by the Court as a question of law.

Saunders v. Lischkoff, 137 Fla. 826, 188 So. 815, 820 (1939). By not establishing there was no genuine issue as to any material fact, the defendants below failed to satisfy their burden of proof in order to be entitled to a summary judgment. See Holl, 191 So. 2d at 43; Gruber v. Mt. Sinai Hospital of Greater Miami, 487 So. 2d 76 (Fla. 3d DCA 1986); Williams v. Florida Realty & Management Co., 272 So. 2d 176 (Fla. 3d DCA 1973). The summary judgment herein is reversed and the cause remanded for further proceedings consistent with this opinion.

Reversed.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

Chelton v. Tallahassee-Leon Cnty. Civic Ctr. Auth., 525 So. 2d 972 (Fla. 1st DCA 1988)

…onable inferences, or if there is evidence tending to prove the issues, it should be submitted to a jury as a question of fact to be determined by it, and not taken from the jury and passed upon by the Court as a question of law.” Jancisko v. Levy, 517 So. 2d 41, 41 (Fla. 3d DCA 1987). “Thus, the burden of the moving party in a motion for summary judgment is to demonstrate that the facts show the party moved against cannot prevail.” Multitech Corporation v. St. Johns Bluff Investment Corporation, 518 So. 2d…
Robert A. Baker, M.D. v. United Servs. Auto. Ass'n, 661 So. 2d 128 (Fla. 1st DCA 1995)

…m the jury and passed upon by the court as a question of law. Henderson v. CSX Transportation, Inc., 617 So. 2d 770 (Fla. 1st DCA 1993); Chelton v. Tallahassee-Leon County Civic Center Authority, 525 So. 2d 972 (Fla. 1st DCA 1988); Jancisko v. Levy, 517 So. 2d 41 (Fla. 3d DCA 1987); Moore v. Morris, 475 So. 2d 666 (Fla.1985). A trial court is not permitted to determine issues of fact when deciding a motion for summary judgment; its role is to decide whether issues exist for resolution by the trier of fact. M…
Xiang Jun Cheng v. Uthai Sirichoke, 745 So. 2d 1152 (Fla. 3d DCA 1999)

…sonable inferences, or if there is evidence tending to prove the issues, it should be submitted to a jury as a question of fact to be determined by it, and not taken from the jury and passed upon by the Court as a question of law.” Jancisko v. Levy, 517 So. 2d 41, 41 (Fla. 3d DCA 1987), review denied, Sieracki v. Jancisko, 528 So. 2d 1183 (Fla.1988). Accordingly, we reverse the trial court’s order granting summary judgment in favor of Sirichoke and remand for further proceedings. . Cheng's similar suit aga…

Authorities Cited

Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
Pub. Health Tr. OF Dade Cnty. v. Gregoria Valcin, 507 So. 2d 596 (Fla. 1987)
Atkins v. Humes, 110 So. 2d 663 (Fla. 1959)
Williams v. Fla. Realty & Mgmt. Co., 272 So. 2d 176 (Fla. 3d DCA 1973)
Saunders v. Lischkoff, 137 Fla. 826 (Fla. 1939)
Shores v. Norbert Wegmann, M.D., 370 So. 2d 87 (Fla. 1st DCA 1979)
Gruber v. Mount Sinai Hosp. OF Greater Miami, Inc., 487 So. 2d 76 (Fla. 3d DCA 1986)

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