MILLARD B. CONKLIN, APPELLANT,
v.
WILLIE BOYD, APPELLEE
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.
The court held that the statute of limitations may be tolled if the defendant doctor was out of state, and the doctor's failure to observe the patient and review test results presented a triable issue of fact regarding proximate cause.
Plaintiff sued a medical doctor for wrongful death and negligence. The trial court granted summary judgment for the doctor, partly due to the statute …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Triable Issue Of Fact cases and more on FLexlaw
This case calls for review of an adverse summary final judgment rendered in favor of the defendant medical doctor in a malpractice action.
The complaint alleged two causes of action: 1. Wrongful death and, 2. Negligence [medical malpractice]. The summary final judgment appears to have been rendered because, among other things, the statute of limitations had run as to the wrongful death and no triable issue of negligence had been demonstrated. We reverse.
It affirmatively appears from the record, or at least there is a triable issue as to this fact, that the defendant was without the State of Florida between the occurrence of the cause of action and the commencement of the proceeding. Therefore, if he was in fact out of the State, the provisions of § 95.06 Fla.Stat., F.S.A., would toll the running of the statute of limitations.
Generally, in a medical malpractice case, it is necessary to have [either by deposition, affidavit, pleading, or otherwise] sufficient allegations of fact which would be admissible in evidence to establish whether or not the physician performed his duty of care in a manner commensurate with the standards of the community. See: Couch v. Hutchison, Fla.App.1961, 135 So.2d 18; Cook v. Lichtblau, Fla.App.1962, 144 So.2d 312; Holl v. Talcott, Fla.App.1965, 171 So.2d 412. However, in the instant case, where the charge is in the abandonment of the patient after causing his admission into the hospital and the prescribing of certain medications, examinations, tests, etc., it is apparent from the hospital records and from the doctor’s own admissions that he failed to personally observe the patient [although he was in the hospital] and he failed to review the results of the tests and examinations for several days.1 Tlierefore, even though these facts are not contradicted, they present a triable issue as to whether or not this alleged abandonment was the proximate cause of the demise of the deceased. See: Vihon v. McCormick, Fla.App.1958, 109 So.2d 400; Smith v. City Products Corp., Fla.App.1962, 147 So.2d 590; and also Town of Mount Dora v. Bryant, Fla.App.1961, 128 So.2d 4, wherein the following is found:
•\‘ * * * * *
“ * * * It js wcu-tíhy of constant judicial observance that even where the physical facts are apparently uncontradicted it does not necessarily follow that there is no genuine material issue of factual character for further determination. This is so because in some circumstances un-contradicted facts are susceptible of conflicting factual inferences neither of which should be prejudged unreasonable as a matter of law. In such case the evidence should be submitted to the jury under proper instructions as to the law. * * * ”
iji ‡ % # * iff
It is not absolutely necessary to have expert testimony to determine a medical malpractice case. See: Montgomery v. Stary, Fla.1955, 84 So.2d 34; Dohr v. *403Smith, Fla.1958, 104 So.2d 29; Atkins v. Humes, Fla.App.1958, 107 So.2d 253; 141 A.L.R., page 12 and cases cited therein. It is the function of a jury to determine whether the neglect by a physician to attend a patient was the proximate cause of the patient’s death or complicated illness. See: Saunders v. Lischkoff, 137 Fla. 826, 188 So. 815; Baldor v. Rogers, Fla.1954, 81 So.2d 658, 55 A.L.R.2d 453, 13 A.L.R.2d, p. 14, Anno, and cases cited therein. See also: 57 A.L.R.2d 432, Anno.: Physician-Abandonment of Case; 25 Fla.Jur., Physicians and Surgeons, §§ 81, 88, 89.
Therefore, for the reasons above stated, the summary final judgment here under review is hereby reversed, and this matter is returned to the trial court for further proceedings not inconsistent herewith.
Reversed and remanded, with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Laug v. Murphy, 205 So. 2d 695 (Fla. 4th DCA 1968)…though the trial court noted it “would reinstate the cause if it could find any authority for doing so.” . Fort Walton Lumber & Supply Co. v. Parish, supra. . See Landfield v. Sherman, Fla.App.1967, 201 So. 2d 819; Conklin v. Boyd, Fla.App. 1966, 189 So. 2d 401; Moore v. Gannon, supra; and Little v. Sullivan, supra, for recent examples of reinstatement orders which were reversed as abuses of discretion.…
-
Bakewell v. Shepard, 310 So. 2d 765 (Fla. 2d DCA 1975)….420(e). Neither does the misunderstanding between appel-lee’s counsel and counsel to be associated justify the trial court’s finding of “good cause.” See Miller v. Hartley’s, Inc., Fla.App.3rd 1957, 97 So. 2d 211; Conklin v. Boyd, Fla.App.1st 1966, 189 So. 2d 401; Florida Power & Light Company v. Gilman, Fla.App.3rd 1973,280 So. 2d 15. In the affidavit filed by appellee’s counsel in response to the motion to dismiss, no mention was made of the failure of Judge Justice to enter an order after the hearing hel…
-
Fla. Power & Light Co. v. Gilman, 280 So. 2d 15 (Fla. 3d DCA 1973)…706; Miller v. Hartley’s, Inc., Fla.App.1957, 97 So. 2d 211. An office error by the plaintiff’s attorney and that attorney’s inadvertent failure to prosecute is not such good cause as is contemplated by the rule. See Conklin v. Boyd, Fla.App. 1966, 189 So. 2d 401. The order denying the plaintiff’s motion to dismiss is reversed and the cause is remanded with directions to grant the motion. Reversed and remanded.…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Montgomery v. Stary, 84 So. 2d 34 (Fla. 1955)
- Saunders v. Lischkoff, 137 Fla. 826 (Fla. 1939)
- Town OF Mount Dora v. Bryant, 128 So. 2d 4 (Fla. 2d DCA 1961)
- Dohr v. Smith, 104 So. 2d 29 (Fla. 1958)
- Holl v. Talcott, 171 So. 2d 412 (Fla. 3d DCA 1965)
- Smith v. City Prods. Corp., 147 So. 2d 590 (Fla. 1st DCA 1962)
- Atkins v. Humes, 107 So. 2d 253 (Fla. 2d DCA 1958)
- Buffalo Indus. Bank v. Rose, 109 So. 2d 400 (Fla. 3d DCA 1959)
- Baldor v. Rogers, 81 So. 2d 658 (Fla. 1954)
- Cook v. Lichtblau, 144 So. 2d 312 (Fla. 2d DCA 1962)