MIRIAM MASCHECK, INC., A FLORIDA CORPORATION, AND MIRIAM MASCHEK, APPELLANTS,
v.
RUTH MAUSNER AND HOWARD MAUSNER, APPELLEES
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The court held that individuals holding themselves out as having special skills, like those performing facial rejuvenation, are held to a professional standard of care, not necessarily that of a medical doctor, and that a failure to adequately inform a patient of treatment risks invalidates consent.
[1] Professionals and those undertaking work requiring special skill owe a duty to exercise a standard of care consistent with their individual abilities and superior knowled…
[2] Individuals holding themselves out to the public as possessing special knowledge and skill in a particular field are held to a higher standard of care than the average pe…
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Join FLexlaw to unlock all legal intelligenceAppellants, operating a salon, performed a facial rejuvenation treatment on appellee using phenol, resulting in severe chemical burns and permanent sc…
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Miriam Maschek, Inc. and Miriam Mas-chek, defendants below, seek review of an adverse jury verdict and final judgment in a case involving negligent treatment administered by a facial rejuvenator.
Appellants operate the Miriam Maschek Salon in Dade County, Florida and perform skin peeling and facial rejuvenation processes for their patients. Mrs. Ruth Mausner, plaintiff-appellee, sought appellants’ services in order to achieve a more even skin coloring. As a result of the treatment, which included the application of the chemical phenol, Mrs. Mausner received severe chemical burns to her neck and upper chest area. The burns resulted in permanent scarring and a considerable psychological reaction. The case proceeded to trial and the jury returned a verdict for plaintiff, Ruth Mausner, in the sum of $30,000 and for plaintiff-husband, Howard Mausner, in the sum of $5,000.
On appeal appellants argue two points: (1) the court’s charge to the jury held appellant, Miriam Maschek, a non-medical person, to the same standard of care as a *861medical doctor, and (2) that the jury was improperly instructed on the issue of informed consent.
Negligence is the failure to use that degree of care, diligence and skill that is one’s legal duty to use in order to protect another person from injury. The degree of care required is ordinary and reasonable care according to a particular set of circumstances. The law, however, will demand from a person with knowledge, skill or intellect superior to that of the ordinary man, conduct which is consistent with his individual ability. Professional individuals in general and those who undertake any work or calling for which a special skill is required have a duty not only to exercise reasonable care in what they do, but also to possess a standard minimum of special knowledge and ability.
A physician is an example of one who must exercise this special standard of care since he is required to possess that reasonable degree of learning, skill and experience which ordinarily is possessed by others of his profession, and he must exercise reasonable and ordinary care and diligence in the execution of his skill and the application of his knowledge and exert his best judgment as to the treatment of a case entrusted to him. The means and methods employed must be recognized as necessary and which are customarily followed in the particular type of case according to the standards of those who are qualified by similar training and experience to perform similar services in the community or in a similar community. Hill v. Boughton, 146 Fla. 505, 1 So.2d 610 (1941); Saunders v. Lischkoff, 137 Fla. 826, 188 So. 815 (1939); Potock v. Turek, Fla.App.1969, 227 So.2d 724; O’Grady v. Wickman, Fla.App.1968, 213 So.2d 321; Lab v. Hall, Fla.App.1967, 200 So.2d 556.
While most of the decided cases deal with physicians and surgeons, the same increased standard is undoubtedly true for dentists, attorneys, architects, engineers, accountants, and other professionals or those in skilled trades. Prosser on Torts § 32 (1964). Certainly in the application of chemicals to the skin, appellants should be held to a higher standard of care than the average man.
Appellants hold themselves out to the public as having a special knowledge and skill in treating certain dermatological conditions. They should be bound, therefore, not only to the ordinary degree of care, skill and knowledge possessed by the layman, but also to exercise the special degree of care, skill and knowledge possessed by members of their profession who specialize in the treatment of similar conditions in similar localities, having a regard for the present state of medical and scientific knowledge at the time of the treatment. An instruction of this nature is not erroneous since it is adequately supported by the facts in the case sub judice and the prevailing law in Florida. Further, it does not hold appellants to the degree of care of a medical doctor but only to the degree of a professional person similar to which appellant, Maschek, was or should have been.
With regard to charging the jury on the issue of informed consent, the record on appeal supports a finding that there was a failure to adequately inform Mrs. Mausner of the risks she would face when undergoing the treatment administered by appellants. This was an affirmative duty on the part of appellants. Again using a medical analogy, before operating on a patient a doctor is required to obtain that patient’s informed consent for the operation. Unless a person who gives consent to an operation knows its dangers and the degree of danger, a “consent” does not represent a choice and is ineffectual. Ditlow v. Kaplan, Fla.App.1965, 181 So.2d 226; Bowers v. Talmage, Fla.App.1963, 159 So.2d 888; Chambers v. Nottebaum, Fla.App.1957, 96 So.2d 716. Because Mrs. Mausner was not sufficiently informed before treatment of the risks and dangers in*862volved, any consent obtained from her by appellants will be unavailing.
Therefore, the judgment of the lower court should be and hereby is affirmed.
Affirmed.
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Citator
Cited By (12 total)
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Thomas v. J. R. Berrios, M.D., 348 So. 2d 905 (Fla. 2d DCA 1977)…nt or negligent medical treatment. Absence of Informed Consent In obtaining the consent to an operation or a course of treatment, a physician has an obligation to advise his patient of the material risks involved. Miriam Mascheck, Inc. v. Mausner, 264 So. 2d 859 (Fla.3d DCA 1972); Bowers v. Talmage, 159 So. 2d 888 (Fla.3d DCA 1964). The extent of the duty is aptly described in ZeBarth v. Swedish Hospital Medical Center, 81 Wash.2d 12, 499 P. 2d 1 (1972), as follows: “The duty of a medical doctor to inform…
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Gorin v. City OF ST. Augustine, 595 So. 2d 1062 (Fla. 5th DCA 1992)…dition as a matter of law. We reverse.” [*1065] “Negligence is commonly defined as the failure to use that degree of care, diligence and skill that is one’s legal duty to use in order to protect another from injury. Miriam Mascheck, Inc. v. Mausner, 264 So. 2d 859 (Fla. 3d DCA 1972). As an essential element of any negligence action, the plaintiff must establish the existence of a duty recognized by law which requires the defendant to conform to a certain standard of conduct for the protection of others agains…
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City CAB Co. OF Orlando, Inc. v. Green, 308 So. 2d 540 (Fla. 4th DCA 1975)…Pac. R. Co., 1901, 112 Wis. 184, 193, 88 N.W. 33, 36; Garland v. Boston & Me. R. Co., 1913, 76 N.H. 556, 86 A. 141,” Id. at 154, n. 21. See also Atlantic Coastline R. Co. v. Watkins, 97 Fla. 350, 121 So. 95 (1929); Miriam Mascheck, Inc. v. Mausner, 264 So. 2d 859 (3rd D.C.A.Fla.1972); Gresham v. Courson, 177 So. 2d 33 (1st D.C.A.Fla. [*542] 1965); Sprick v. North Shore Hospital Inc., 121 So. 2d 682 (3d D.C.A.Fla.1960); 23 Fla.Jur. Negligence, §§ 2, 19, 20 (1959). This fundamental premise and requirement is…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Rochelle Ditlow and her husband v. Kaplan, 181 So. 2d 226 (Fla. 3d DCA 1965)
- Saunders v. Lischkoff, 137 Fla. 826 (Fla. 1939)
- Kenan v. Black, 146 Fla. 503 (Fla. 1941)
- Hill v. Boughton, 146 Fla. 505 (Fla. 1941)
- Bowers v. Talmage, 159 So. 2d 888 (Fla. 3d DCA 1963)
- LAB v. Hall, 200 So. 2d 556 (Fla. 4th DCA 1967)
- Silas E. Chambers v. Nottebaum, 96 So. 2d 716 (Fla. 3d DCA 1957)
- O'Grady v. Wickman, 213 So. 2d 321 (Fla. 4th DCA 1968)
- Madonna Potock v. Samuel L. Turek, M.D., 227 So. 2d 724 (Fla. 3d DCA 1969)