CATRINA BANKS, A MINOR, BY AND THROUGH HER PARENTS AND NEXT FRIENDS, ROY BANKS, AND MARIA BANKS, INDIVIDUALLY, APPELLANTS,
v.
HOSPITAL CORPORATION OF AMERICA, A TENNESSEE CORPORATION, D/B/A PLANTATION GENERAL HOSPITAL; AND HOSPITAL DEVELOPMENT AND SERVICE CORP., A FLORIDA CORPORATION, D/B/A PLANTATION GENERAL HOSPITAL, APPELLEES

Fla. 4th DCA | 1990-08-08
Nos. 88-3135 and 88-3452
ANSTEAD and POLEN, JJ., concur.
566 So. 2d 544 Florida District Court of Appeal, Fourth District (1990) Positive Treatment
Cited by 16 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

In this medical malpractice case, the Florida Fourth District Court of Appeal reversed a trial judgment because the trial judge failed to give the standard jury instruction on concurring cause, which was necessary given that evidence showed both premature birth and hospital negligence contributed to the plaintiff's injuries.


Holding

The trial court's failure to give the concurring cause instruction constituted reversible error because evidence supported that both the premature birth and the hospital's negligence were concurring causes of injury, and litigants have the right to have the jury instructed on the law applicable to issues raised by the evidence.


Headnotes

[1] A trial court commits reversible error by failing to give a standard jury instruction on concurring cause when evidence adduced at trial creates an issue regarding concur…

[2] A jury instruction on concurring cause is necessary when negligence operates in combination with another cause, and the negligence substantially contributes to the result…

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Key Quotes

“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.”

This is the text of Florida Standard Jury Instruction 5.1b on concurring cause, which should have been given to the jury in this case.

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Facts & Procedural History

Catrina Banks was born prematurely with a respiratory problem and required insertion of an umbilical artery catheter into her aorta. Two months later,…

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Opinion of the Court
GARRETT, Judge.

GARRETT, Judge.

This is a consolidated appeal of a medical malpractice action. We write to address the trial judge’s failure to give the standard jury instruction for concurring cause. Catrina Banks, born prematurely with a respiratory problem, had to have an umbilical artery catheter inserted into her aorta. Two months later, she underwent surgery for the removal of the part of the catheter left in her body. At trial, appellants asked the trial judge to give all three sections of the Florida Standard Jury Instruction (Civil) 5.1. The trial judge only gave section 5.1a.1 We reverse.

Standard Jury Instruction 5.1b. reads:

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.

The “NOTE ON USE” following Standard Jury Instruction 5.1 states:

Charge 5.1a (legal cause generally) is to be given in all cases. Charge 5.1b (concurring cause), to be given when the court considers it necessary, does not set forth any additional standard for the jury to consider in determining whether negligence was a legal cause of damage but only 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. Charge 5.1c (intervening cause) is to be given only in cases in which the court concludes that there is a jury issue as to the presence and effect of an intervening cause.

Appellees ádmitted negligence, but denied that their negligence caused appellants’ loss, injury or damage. The evidence adduced at trial supported the issue that the premature birth and the negligence (which occurred on the same day) were concurring causes of Catrina’s learning disabilities and medical problems. 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. Tilley v, Broward Hospital District, 458 So. 2d 817, 818 (Fla. 4th DCA 1984) (also involved a premature birth and hospital negligence). The standard for reviewing the failure to give a jury instruction is “whether ... there was a reasonable possibility that the jury could have been misled by the failure to give the instruction.” Id. Because causation remained an issue, the jury should have been instructed as to the legal consequences of a concurring cause. If so instructed, the jury may have concluded that appellees’ negligence caused appellants’ loss, injury or damage even though such negligence operated in combination with the lasting adverse effects of the premature birth.

Accordingly, there is a reasonable possibility the jury could have been misled when the trial court failed to instruct on a concurring cause. Such failure to give the concurring cause instruction constituted reversible error. We reverse and remand for a new trial.

However, because appellants failed to address the trial court's granting of appellee Hospital Corporation of America’s motion for directed verdict we affirm as to that issue. City of Miami v. Steckloff 111 So. 2d 446 (Fla.1959).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED FOR A NEW TRIAL.

ANSTEAD and POLEN, JJ., concur. . Because neither party requested the giving of Florida Standard Jury Instruction (Civil) 6.2b. (aggravation or activation of disease or defect), the judge did not so instruct the jury. Based on the facts of this case, we can only wonder why no one requested that such instruction be given.


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Citator

Cited By

  • Reyka v. Halifax Hosp. Dist., 657 So. 2d 967 (Fla. 5th DCA 1995)
    …le error occurred when the trial court faded to give both the concurring cause instruction and the intervening cause instruction. Zigman v. Robert E. Cline, M.D., 20 Fla.L.Weekly D821 (Fla. 4th DCA April 7, 1995); Banks v. Hospital Corp. of America, 566 So. 2d 544 (Fla. 4th DCA 1990), rev. denied, 577 So. 2d 1326 (Fla.1991); Tilley v. Broward Hospital District, 458 So. 2d 817 (Fla. 4th DCA 1984). As Judge Richard Frank explained in Zigman, the concurring cause instruction encompasses the medical malpractice s…
  • Marinelli v. Grace, 608 So. 2d 833 (Fla. 4th DCA 1992)
    …g where there are two or more causes of a plaintiffs injuries, since the instruction may lead a jury to conclude that a defendant is only liable if the defendant’s negligence is the sole cause of the injuries. See Banks v. Hospital Corp. of America, 566 So. 2d 544 (Fla. 4th DCA 1990), rev. denied, 577 So. 2d 1326 (Fla.1991). The plaintiff requested the 5.1(b) instruction so that the jury would understand that the plaintiff could recover as long as the accident was one of the causes of the damage, and that it…
  • …here there are two or more causes of a plaintiff’s injuries, since the instruction may lead a jury to conclude that a defendant is only liable if the defendant's negligence is the sole cause of the injuries.”) (citing Banks v. Hospital Corp. of Am., 566 So. 2d 544 (Fla. 4th DCA 1990), review denied, 577 So. 2d 1326 (Fla.1991)), review denied, 620 So. 2d 761 (Fla.1993); see also Cruz. . Hart requested that the trial court give the following instruction to the jury on aggravation of a pre-existing disease or c…

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