BROOKS RICE, APPELLANT,
v.
BAXTER L. CLEMENT, M.D., APPELLEE

Fla. 4th DCA | 1966-03-31
No. 114
ANDREWS, Acting C. J., and WALDEN, J., concur.
184 So. 2d 678 Florida District Court of Appeal, Fourth District (1966) Positive Treatment
Cited by 30 cases

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Synopsis

Brooks Rice appeals a jury verdict in favor of physician Baxter Clement in a medical malpractice action. The appellate court affirmed the judgment, holding that the trial court properly limited the case to simple negligence, allowed contributory negligence as a defense despite procedural defects, and correctly excluded the plaintiff's attempted cross-examination regarding medical literature.


Holding

The trial court did not err. The court properly struck the punitive damages claim because conclusory adjectives without factual allegations of fraud, malice, gross negligence, or oppression are insufficient to support exemplary damages. Contributory negligence was properly submitted to the jury where the defendant provided clear notice via attorney letter and pretrial order, ensuring plaintiff was not prejudiced. The court correctly excluded the plaintiff's attempt to impeach the defendant's testimony by cross-examination about medical literature because such books cannot be used as independent substantive proof to test a physician's testimony in negligence cases.


Key Quotes

“In order to recover exemplary damages, the complaint must allege some general facts and circumstances of fraud, malice, gross negligence, or oppression.”

Establishes the pleading requirement for punitive damages—mere conclusory adjectives are insufficient without factual allegations.

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Facts & Procedural History

Brooks Rice sued Dr. Baxter L. Clement for malpractice involving treatment of an injury to his left foot. The original complaint alleged willful, reck…

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

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Opinion of the Court
STURGIS, WALLACE E., Associate Judge.

STURGIS, WALLACE E., Associate Judge.

Plaintiff below appeals from a judgment for defendant entered pursuant to verdict of the jury in this malpractice action.

The original complaint demanded punitive damages on the ground that the defendant physician was guilty of willful, reckless and wanton conduct in treating an injury to plaintiff’s left foot, but did not state with particularity any acts of omission or commission on the part of the defendant relied on by plaintiff as constituting such conduct. On motion to dismiss the court struck from said complaint all claims for punitive damages, with leave to plaintiff to amend, thereby limiting plaintiffs claim under that complaint to one based on simple negligence. Plaintiff filed an amended complaint on which issue was joined, but did not assert therein any basis for or claim punitive damages.

Defendant generally denied the material allegations of the complaint but for some unexplained reason did not formally plead contributory negligence as a defense. It appears, however, that on July 6, 1964, approximately three months prior to trial, counsel for defendant informed the court by letter, copy of which was sent to and received by counsel for plaintiff, that it was defendant’s intention to rely upon contributory negligence as a defense, and on August 7, 1964, a pretrial order was entered providing, inter alia:

“Defendant denies any negligence and has interposed a plea of contributory negligence based on defendant’s contention that plaintiff failed to follow defendant’s instructions and failed to properly avail himself of readily available medical treatment when it should have been apparent to plaintiff that the wound was not healing as the doctor had expected.”

There was no effort prior to trial to have said order amended or corrected in any respect. After commencement of the trial plaintiff attempted to exclude contributory negligence as an issue on the ground that defendant had not pleaded same as a defense and that the pretrial order recognizing such defense was in error because the subject had not been discussed at the pretrial conference. To support the latter premise plaintiff proffered a transcript of the proceedings at the conference. The trial judge observed that his notes of the conference indicated that contributory negligence was an issue to be tried, denied said proffer and permitted said issue to be tried.

After the jury had retired to consider its verdict, it returned to the jury box and requested and received additional charges on the issues tried, including contributory negligence.

It would serve no useful purpose to detail the material facts presented to the jury. Suffice it to say that from a careful review of the extensive record in this cause we have concluded that on the issues made the evidence is ample to support the jury *680verdict. Our discussion will be confined, therefore, to points of law involved on this appeal other than appellant’s challenge to the sufficiency of the evidence.

Appellant further contends that the trial court erred: (1) in granting defendant’s motion to strike all portions of the original complaint pertaining to gross, willful, or wanton negligence and all claims for damages of a punitive nature; (2) in permitting the issue of contributory negligence to be tried; (3) in sustaining an objection to plaintiff’s attempt, on cross-examination of the defendant, “to develop the reason or lay a predicate to show the jury that the Defendant refused to admit that any medical literature, textbook, [or] encyclopedia was authoritative and relied on by the Defendant” in his treatment of the plaintiff; (4) in giving certain charges to the jury; and (5) in admitting testimony as to plaintiff’s alleged drinking habits.

We find no merit to appellant’s contention that it was error to strike those portions of the original complaint sounding in punitive damages. The use of the descriptive words “willful, wanton or reckless” is not sufficient to state a case entitling recovery of exemplary or punitive damages. Appellant admits an inability to find support for such rule in this jurisdiction. In order to recover exemplary damages, the complaint must allege some general facts and circumstances of fraud, malice, gross negligence, or oppression. Winn & Lovett Grocery Co. v. Archer, 1936, 126 Fla. 308, 171 So. 214. Adjectives employed to label an act are of themselves insufficient to support a claim of gross negligence and are in fact unnecessary.

Consequent upon leave to amend extended by the order granting defendant’s motion to strike the claim for punitive damages set out in the original complaint, plaintiff filed an amended complaint which did not assert a basis for or claim punitive damages. An original pleading is superseded by an amendment of it which does not express an intention to save any portion of it. Shannon v. McBride, Fla.App.1958, 105 So.2d 16.

Florida Rules of Civil Procedure require that contributory negligence be affirmatively pleaded. The defendant’s failure to file the plea is not condoned. However, it is clear from the mentioned letter of defendant’s attorney that plaintiff was fully apprised of the fact that the defendant intended to rely on contributory negligence as a defense, and the pretrial order, which governed the subsequent course of the case, recognized and confirmed same as the law of the case. Vaughn v. Smith, Fla.1957, 96 So.2d 143; Florida Rules of Civil Procedure, Rule 1.16(6), 30 F.S.A. See also Garrett v. Oak Hall Club, Fla.1960, 118 So. 2d 633. It is unlikely that the defendant would have rested on his oars had the plaintiff made a timely assault on the pretrial order in that particular or that in such event defendant would have been denied an opportunity to further plead. The trial court was not in error under the circumstances of this case in permitting the issue of contributory negligence to be submitted to the jury.

On cross-examining the defendant, plaintiff sought to elicit from him a statement as to some particular medical writing, treatise or piece of medical literature as authoritative and on which he relied to support his treatment of the plaintiff. Appellant states it was his purpose to lay a foundation on which to impeach the defendant’s testimony because of his statement that he did not rely “100 per cent” on any particular such writing, treatise or medical literature. Appellant’s reasoning is obscure. Medical works cannot be read or introduced before juries as independent, substantive, or affirmative proof. Specified books may be introduced in rebuttal to contradict a witness who has testified to having derived therefrom teachings that they do not contain or which are substantially different from those testified to. Eggart v. State, 1898, 40 Fla. 527, 25 So. 144. In explaining its ruling sustaining an objec- ' *681tion to this line of cross-examination, the trial court cogently observed that in weighing the testimony of the defendant in an action such as this, it is improper to test his testimony upon numerous excerpts from such textbooks as the plaintiff may produce; that to allow such would force the jury into a position of making its interpretation of the excerpts as against the conduct attributed to the defendant doctor and that such is not a lawful procedure in deciding a question of negligence. We agree, and would further observe that such procedure would be so burdensome as to endlessly prolong the trial.

We have carefully considered the other issues of this appeal and find no merit therein.

Affirmed.

ANDREWS, Acting C. J., and WALDEN, J., concur.


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Citator

Cited By (15 total)

  • Rupp v. Bryant, 417 So. 2d 658 (Fla. 1982)
    …duties did those injuries occur. Certainly the Bryants cannot successfully state a cause of action for exemplary damages by merely using the descriptive phrase “gross and in reckless disregard,” to label acts of the defendants. See Rice v. Clement, 184 So. 2d 678 (Fla. 4th DCA 1966). For exemplary damages to be recovered, the complaint must allege facts and circumstances of fraud, malice, gross negligence, or oppression. Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214 (1936). In this context,…
  • Baron OIL Co. v. Nationwide Mut. Fire Ins. Co., 470 So. 2d 810 (Fla. 1st DCA 1985)
    …ule that an original pleading is superseded by an amendment of it which does not express an intention to save any portion of the original pleading. Commercial Garden Mall v. Success Academy, Inc., 453 So. 2d 934 (Fla. 4th DCA 1984); Rice v. Clement, 184 So. 2d 678 (Fla. 4th DCA 1966); Shannon v. McBride, 105 So. 2d 16 (Fla. 2d DCA 1958). Consequently, when an original complaint has been superseded by an amended complaint, the original complaint can no longer furnish a basis for determining the insurer’s duty…
  • Costa v. Costa, 429 So. 2d 1249 (Fla. 4th DCA 1983)
    …ce upon treatises as evidence of other foundation for the ultimate conclusion. Those texts and compendia to which the report refers were not part of the proceedings until their appearance in the report. If, as this court has said in Rice v. Clement, 184 So. 2d 678 (Fla. 4th DCA 1966), such works could not be introduced as independent proof, it follows that the general master could not consider them as such. Further, we approve of the following principle contained in Hosking v. Hosking, 318 So. 2d 559, 561 (Fl…

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