JEAN MUSACHIA, APPELLANT,
v.
DR. MORTON TERRY, DR. LOWELL DOUGLAS ROSMAN, DR. ALBERT J. ROSMAN, DANIEL J. HARKINS AND ALBERT A. FELDMAN, DIRECTORS AND AS TRUSTEES OF BISCAYNE OSTEOPATHIC HOSPITAL, INC., A DISSOLVED FLORIDA CORPORATION, AND/OR OPERATING AS A DEFACTO CORPORATION AND/OR BISCAYNE OSTEOPATHIC HOSPITAL, INC., A CORPORATION INCORPORATED PURSUANT TO CHAPTER 617 OF FLORIDA STATUTES, APPELLEES
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The widow of a man who died after hospitalization sued for wrongful death, alleging negligent diagnosis and treatment by osteopathic physicians and the hospital. The trial court granted a directed verdict for all defendants, but the appellate court reversed as to the physicians because expert testimony from a medical doctor should have been admitted despite the defendant physicians being osteopaths.
The trial court properly directed a verdict for the hospital, but erred in directing a verdict for the treating osteopathic physicians. Expert testimony from Dr. Stewart, a medical doctor, should have been admitted because the principles of diagnosis and treatment for internal injuries apply equally across medical schools, and the proffer of such testimony was improperly prevented from being completed.
“It does not exclude the testimony of physicians of other schools or experts in other lines when that testimony bears on a point as to which the principles of the schools do or should concur, such as the dangers incident to the use of X-rays or the existence of a condition that should be recognized by any physician.”
Establishes the exception to the rule that doctors must be judged by members of their own school, allowing cross-school expert testimony when medical principles should concur.
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Join FLexlaw to unlock all legal intelligenceCarmine Jack Musachia was severely beaten on March 28, 1959, and taken to Biscayne Osteopathic Hospital unconscious. X-rays were taken of his skull, a…
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Carmine Jack Musachia was severely beaten on March 28, 1959. Dr. Lowell Douglas Rosman was called to attend the beaten man and found him unconscious. Dr. Rosman had Musachia removed to the Biscayne Osteopathic Hospital where he was examined by an interne, whose tentative diagnosis was “traumatic injuries to the face and body generally with possible fracture of ribs on right; visceral bleeding and/or contusion; fracture of skull.” X-rays were made of the skull, abdomen and chest. The X-ray of the chest did not reveal any fractures.
Dr. Lowell Rosman and his brother Dr. Albert Rosman and the consultant, Dr. Terry were osteopathic physicians. In addition, Dr. Terry was a specialist in the field of internal medicine. Their diagnosis was adynamic ileus, which was described as paralysis of an area of the small intestine. Musachia was discharged from the hospital and went home on April 4. He died the following morning. An autopsy revealed thirteen rib fractures, two perforations of the intestines, and generalized peritonitis.1
His widow Jean Musachia filed this action for wrongful death under Ch. 768, Fla.Stat., F.S.A., against Dr. Lowell Ros-man, his partner Dr. Albert Rosman, Dr. Terry, the consultant, and against the hospital. The complaint charged the defendant doctors with negligence in diagnosis and treatment. The hospital was charged with negligent diagnosis and with having made inadequate X-rays and for negligent reading of those X-rays.
The cause proceeded to trial before a jury, and at the close of the plaintiff’s case the trial judge granted defendants’ motion for a directed verdict. Judgment was entered, and a motion for new trial was denied. Plaintiff has appealed.
The trial court was eminently correct in directing a verdict in favor of the hospital. The charge of negligence against the hospital was not sustained, and the circumstances disclosed were not such as to invite application of the doctrine of res *607ipsa loquitur as to the hospital. See Roth v. Dade County, Fla.1954, 71 So.2d 169; West Coast Hospital Ass’n v. Webb, Fla. 1951, 52 So.2d 803.
We conclude, however, that the trial judge committed error in directing a verdict in favor of the treating osteopathic physicians and the osteopath who consulted with them, the defendants Dr. Lowell Ros-man, Dr. Albert Rosman and Dr. Morton Terry
The respects in which it was contended by the plaintiff that the defendant doctors were guilty of negligence in diagnosis and treatment of the decedent were not open to ordinary observation by persons of common experience, and, therefore, were such as to require testimony of one who was qualified in the field of medical knowledge to inform the jurors of the proper procedures for diagnosing and treating the particular case. Atkins v. Humes, Fla. 1959, 110 So.2d 663, 666, 81 A.L.R.2d 590; Hill v. Boughton, 146 Fla. 505, 1 So.2d 610, 134 A.L.R. 678; Brown v. Swindal, Fla.App.1960, 121 So.2d 38, 40; Crovella v. Cochrane, Fla.App.1958, 102 So.2d 307, 310.
In recognition of the foregoing requirement, the plaintiff sought to present the opinion of Joseph S. Stewart, M.D. The refusal of the court to permit him to testify, because he was of a different school of medicine than the defendant doctors, is challenged by the appellant. In referring to testimony of that character, the Supreme Court in Foster v. Thornton, 125 Fla. 699, 170 So. 459, at 463, said:
* * It does not exclude the testimony of physicians of other schools or experts in other lines when that testimony bears on a point as to which the principles of the schools do or should concur, such as the dangers incident to the use of X-rays or the existence of a condition that should be recognized by any physician. 21 R.C.L. 383; 22 C.J. 661. In Longan v. Welt-mer, 180 Mo. 322, 79 S.W. 655, 64 L.R.A. 969, 103 Am.St.Rep. 573, it was held that any person qualified by education and experience may testify whether the treatment which plaintiff underwent was proper.”
The matter for which Dr. Stewart’s testimony was offered here would appear to be within the exception noted above in Foster v. Thornton to the rule that doctors should be judged by those of their own school. This is so because with reference to internal injuries including fractured ribs, perforated intestines and generalized peritonitis, which resulted from a severe beating, the principles of the two schools should concur as to diagnosis. The same is applicable to the treatment, since it was not made to appear that the schools to which the witness and the defendants belonged required and employed different treatment for those conditions. Therefore, Dr. Stewart’s testimony should not have been refused on the ground that he was a medical doctor and that the defendant doctors were osteopaths. See Foster v. Thornton, supra; Porter v. Puryear, 153 Tex. 82, 262 S.W.2d 933 (and opinion on rehearing, 153 Tex. 82, 264 S.W.2d 689) ; Miles v. Meadows, Tex.Civ.App.1958, 309 S.W.2d 284, 286; Williams v. Marini, 105 Vt. 11, 162 A. 796, 797; Treptau v. Behrens Spa, Inc., 247 Wis. 438, 20 N.W.2d 108, 113; 41 Am.Jur., Physicians & Surgeons § 130; 32 C.J.S. Evidence § 537.
This case presents a further difficulty in that there was no sufficient proffer or proof. See rule 1.37(b), F.R.C.P., 30 F. S.A. Plaintiff’s attorney attempted a proffer, by interrogating Dr. Stewart out of the presence of the jury on matters relating to diagnosis and treatment of the deceased, which, as hereinabove indicated were material to the establishment of plaintiff’s cause of action. In the course of that proffer, objections were made by counsel for the defendants each time Dr. Stewart was asked to express his opinion. Such objections were sustained and the witness not *608permitted to answer, thus preventing the proffer from being completed.
The proffer was necessary, and was an essential part of the plaintiff’s case. When evidence offered by a party is ruled inadmissible, unless the testimony desired to be presented is otherwise shown on the record, it is necessary to make a proffer thereof so that a reviewing court may determine what was excluded and whether the exclusion was prejudicial. See Lawson v. Loftin, 155 Fla. 685, 21 So.2d 202, 204; Ritter’s Hotel, Inc. v. Sidebothom, 142 Fla. 171, 194 So. 322, 323; Green v. Hood, Fla.App.1960, 120 So.2d 223, 226; Conrad, Modern Trial Evidence § 1219 (1956). After it is made, if the proffer is objected to, a ruling follows either allowing the testimony to be presented in the case, or sustaining the objection to the proffer. Therefore, when a proffer of proof is being made by questioning a witness out of the presence of the jury, the witness should be allowed to answer the questions put to him. The error in not allowing the making and completion of the proffer was prejudicial to the plaintiff, because there was no way to know whether Dr. Stewart’s answers would have amounted to expert testimony which could serve as a basis for the jury to find that the defendant doctors failed “to use ordinary skill and diligence and to apply the means and methods ordinarily and generally used by physicians of ordinary skill and learning in the practice of his profession to determine the nature of the ailment and to act upon his honest opinion and conclusion.” See Hill v. Boughton, supra, 1 So.2d at 613.
The judgment is affirmed as to the defendants Daniel J. Harkins and Albert A. Feldman, as trustees of Biscayne Osteopathic Hospital, Inc., a dissolved Florida corporation. The judgment is reversed and the cause remanded for a .new trial as to the defendants Dr. Lowell Rosman, Dr. Albert Rosman and Dr. Morton Terry.
Affirmed in part and reversed in part and remanded for a new trial.
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Am. Motors Corp. v. Ellis, 403 So. 2d 459 (Fla. 5th DCA 1981)…the fire. In fact, prejudice is inherent in the ruling, because it precluded both AMC’s counsel and the trial and appellate courts from knowing the contents of the statement. Cf. Cason v. Smith, 365 So. 2d 1042 (Fla. 3d DCA 1978); Musachia v. Terry, 140 So. 2d 605 (Fla. 3d DCA 1962). Counsel for the plaintiffs urges that this error was not properly preserved for appellate review because the defendant did not proffer the statement at trial. This is specious because it is clear that the ruling of the trial cou…
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Thunderbird Drive-In Theatre, Inc. v. Reed, 571 So. 2d 1341 (Fla. 4th DCA 1990)…ial court’s ruling by the reviewing court and is prejudicial to the party making the proffer and generally is reversible error. Davis v. Pfund, 479 So. 2d 230 (Fla. 3d DCA 1985); Cason v. Smith, 365 So. 2d 1042 (Fla. 3d DCA 1978); Musachia v. Terry, 140 So. 2d 605 (Fla. 3d DCA 1962). While there may be situations where the preclusion would constitute harmless error, this is certainly not one of them. The question of Reed’s contribution to the cause of his unfortunate accident weighed heavily in the determinat…
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Fla. E. Coast Ry. Co. v. Morgan, 213 So. 2d 632 (Fla. 3d DCA 1968)…68, 206 So. 2d 476. The principal objection to the evi-dentiary rulings is that the trial judge refused to permit the defendant to proffer evidence after an objection to the introduction of same had been made, citing Musachia v. Terry, Fla.App.1962, 140 So. 2d 605; Lannan v. Garrett, 23 Cal.App.2d 367, 73 P. 2d 620; Fidelity & Casualty Co. v. Weise, 80 Ill.App. 499, rev’d on other grounds, 182 Ill. 496, 55 N.E. 540; State v. Davis, 155 Me. 430, 156 A. 2d 392, 89 A.L.R.2d 277; Bextermueller v. Busken, Mo.App.1…
Previewing 3 of 19 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Crovella v. Cleland D. Cochrane, M.D., 102 So. 2d 307 (Fla. 1st DCA 1958)
- Atkins v. Humes, 110 So. 2d 663 (Fla. 1959)
- Foster v. Thornton, 125 Fla. 699 (Fla. 1936)
- Ritter's Hotel, Inc. v. Sidebothom, 142 Fla. 171 (Fla. 1940)
- W. Coast Hosp. Ass'n v. Webb, 52 So.2d 803 (Fla. 1951)
- Kenan v. Black, 146 Fla. 503 (Fla. 1941)
- Green v. Hood, 120 So. 2d 223 (Fla. 2d DCA 1960)
- Hill v. Boughton, 146 Fla. 505 (Fla. 1941)
- Roth v. Dade Cnty., 71 So. 2d 169 (Fla. 1954)
- Brown v. Swindal, 121 So. 2d 38 (Fla. 1st DCA 1960)