VANESSA DUNNE, A MINOR, BY AND THROUGH HER PARENTS AND NATURAL GUARDIANS, ETHEL DUNNE AND THOMAS DUNNE, AND ETHEL DUNNE AND THOMAS DUNNE, INDIVIDUALLY, APPELLANTS,
v.
JULIO SOMOANO, M.D.; JULIO SOMOANO, M.D., P.A.; PHYSICIANS PROTECTIVE TRUST FUND; AND FLORIDA PATIENT'S COMPENSATION FUND, APPELLEES
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Parents of a child born with brachial plexus palsy sued an obstetrician for medical malpractice, claiming he negligently applied pressure to the baby's head during a complicated delivery. The jury found for the defendant, and the appellate court affirmed, holding that conflicting expert testimony about whether the physician's actions fell below the standard of care presented a jury question.
The court affirmed the jury verdict for the defendant, holding that where testimony at trial supports a jury verdict that the defendant's conduct did not fall below the standard of care, the trial court properly refuses to direct a verdict or grant a new trial. The conflicting testimony regarding what Dr. Somoano actually did and whether those actions constituted negligence was a jury question.
[1] A jury verdict in a medical malpractice case will be upheld if there is testimony to support the finding that the defendant's conduct did not fall below the applicable st…
[2] A trial court should refuse to direct a verdict when the record contains facts or inferences from facts that could support a jury verdict.
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Join FLexlaw to unlock all legal intelligence“Where there is testimony at trial to support a jury verdict that the defendant's conduct did not fall below the standard of care in the community, the court is correct in refusing to direct a verdict”
Establishes the standard for when a trial court may refuse to direct a verdict in a medical malpractice case
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Join FLexlaw to unlock all legal intelligenceVanessa Dunne suffered brachial plexus palsy as a result of complications during her birth. The defense expert conceded that Vanessa's injury resulted…
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PER CURIAM.
The plaintiffs in this medical malpractice case appeal from a jury verdict finding for the defendant obstetrician.
As a result of complications arising during her delivery, Vanessa Dunne was born with brachial plexus palsy. The defense expert conceded that Vanessa’s injury was a result of Dr. Somoano’s acts during birth. The issue at trial was whether Dr. Somoa-no’s actions fell below the standard of care in the community for physicians of his specialty.
Dr. Somoano’s testimony was conflicting. When called as an adverse witness by the plaintiffs, the doctor responded to leading questions on direct examination by admitting that he applied pressure to the baby’s head and tried to turn the head in an attempt to rotate the infant’s shoulders after realizing that the complication known as shoulder dystocia was present. Expert witnesses for both the plaintiffs and the defendant testified that applying pressure to a baby’s head to turn it, when shoulder dystocia is present, may cause nerve damage and constitutes negligence. On cross-examination by defense counsel, and contrary to his testimony on direct examination, Dr. Somoano testified that upon discovering that the baby had shoulder dystocia he enlarged the episiotomy, placed his hands behind the baby’s armpits, and attempted to rotate the child — an indisputably non-negligent act. There was evidence that the palsy could have been caused by actions of the physician during the complicated delivery other than a negligent act.
Where there is testimony at trial to support a jury verdict that the defendant’s conduct did not fall below the standard of care in the community, the court is correct in refusing to direct a verdict, Sears, Roebuck & Co. v. McKenzie, 502 So. 2d 940 (Fla. 3d DCA 1987) (directed verdict proper only where record conclusively shows absence of facts or inferences from facts to support a jury verdict), rev. denied, 511 So. 2d 299 (Fla.1987); Telesphere Int’l, Inc. v. Scollin, 489 So. 2d 1152 (Fla. 3d DCA 1986) (directed verdict may not be granted if there is any evidence to support the position of the party moved against), or grant a new trial. Martin v. Stone, 51 So. 2d 33 (Fla.1951) (disputes and conflicts in testimony are jury questions and if evidence appears in the record to support verdict rendered, trial court is without authority to substitute its conclusions); Nunberg v. Brodsky, 224 So. 2d 727 (Fla. 3d DCA 1969) (where evidence is conflicting and verdict is not manifestly against weight of evidence, court may not interfere).
Affirmed.
PER CURIAM.
Contrary to the appellants’ contention on rehearing, neither the rule against maintaining inconsistent positions nor the principle of judicial estoppel applies in this case. Those doctrines prevent a party from pleading a position inconsistent with prior contentions. Palm Beach Co. v. Palm Beach Estates, 110 Fla. 77, 148 So. 544 (1933); Williams v. Kloeppel, 537 So. 2d 1033 (Fla. 1st DCA 1988), rev. denied, 545 So. 2d 1367 (Fla.1989), to the prejudice of the adverse party who acquiesced in the former position, McCurdy v. Collis, 508 So. 2d 380 (Fla. 1st DCA), rev. denied, 518 So. 2d 1274 (Fla.1987), where the inconsistent party’s initial position was successfully maintained. Leitman v. Boone, 439 So. 2d 318 (Fla. 3d DCA 1983); Grauer v. Occidental Life Ins. Co., 363 So. 2d 583 (Fla. 1st DCA 1978), cert. denied, 372 So. 2d 468 (Fla.1979). See generally 22 Fla. Jur.2d Estoppel & Waiver §§ 49-57 (1980). The. inconsistent statements of a person testifying once on the witness stand raise an issue of credibility to be resolved by the fact-finder but do not create an estoppel.
Appellants’ motion for rehearing is denied.
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Ramsey v. Jonassen, 737 So. 2d 1114 (Fla. 2d DCA 1999)…taining to the matter relied on as an estoppel; where the conduct relied on to create the es-toppel was caused by the act of the party claiming the estoppel, or where the positions taken involved solely a question of law. See also Dunne v. Somoano, 550 So. 2d 5 (Fla. 3d DCA 1989); Khan v. Simkins, 687 So. 2d 16 (Fla. 3d DCA 1996); Moore v. State, Dept. of Revenue, 536 So. 2d 1050 (Fla. 1st DCA 1988). Thus, judicial estoppel is used to prevent a party from raising a claim that should have been raised in an…
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Olmsted v. Emmanuel, 783 So. 2d 1122 (Fla. 1st DCA 2001)…king totally inconsistent positions in separate judicial proceedings to the prejudice of the adverse party. E.g., Chase & Co. v. Little, 116 Fla. 667, 156 So. 609, 610 (1934); Ramsey v. Jonassen, 737 So. 2d 1114 (Fla. 2d DCA 1999); Dunne v. Somoano, 550 So. 2d 5, 7 (Fla. 3d DCA 1989). However, in order to work an estoppel, the parties must be the same, the same issues must be involved, and the position assumed in the former trial must have been successfully maintained. Chase, 156 So. at 610; Ramsey, 737 So.…
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Edward R. Becker, M.D. v. Williams, 652 So. 2d 1182 (Fla. 4th DCA 1995)…ho won verdict was undermined on cross-examination: “We believe a fair reading of the expert’s testimony would permit a jury to conclude that the appellee would not suffer permanent effects from her automobile accident.”); see also Dunne v. Somoano, 550 So. 2d 5, 7 (Fla. 3d DCA 1989) (defense verdict in medical malpractice case affirmed even though defendant gave different accounts of events in question on cross-examination and on direct, one of which constituted negligence and one of which did not: “The in…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McCURDY v. J.C. Collis & Exxon Corp., 508 So. 2d 380 (Fla. 1st DCA 1987)
- Martin v. Stone, 51 So. 2d 33 (Fla. 1951)
- Palm Beach Co. v. Palm Beach Ests., 110 Fla. 77 (Fla. 1933)
- Lorn Leitman and John Gentile v. Boone, 439 So. 2d 318 (Fla. 3d DCA 1983)
- Sears v. McKENZIE, 502 So. 2d 940 (Fla. 3d DCA 1987)
- Drowne v. Fla. Indus. Comm'n & DCS/Comptroller, 224 So. 2d 727 (Fla. 1st DCA 1969)
- Grauer v. Occidental Life Ins. Co. of Cal., 363 So. 2d 583 (Fla. 1st DCA 1978)
- Telesphere Int'l, Inc. v. Scollin, 489 So. 2d 1152 (Fla. 3d DCA 1986)
- Williams v. Kloeppel, 537 So. 2d 1033 (Fla. 1st DCA 1988)