ALEXANDER P. MAYBARDUK ET AL., APPELLANTS,
v.
ALBERTO S. BUSTAMANTE ET AL., APPELLEES
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In this medical malpractice case arising from a surgical instrument left in a patient's abdomen, the court reversed the trial court's directed verdict in favor of Dr. Bustamante and Mercy Hospital, finding sufficient evidence to submit the negligence question to a jury.
The directed verdict for Dr. Bustamante and Mercy Hospital was improper. Sufficient evidence and reasonable inferences existed to warrant submitting the issue of negligence by Dr. Bustamante and Mercy Hospital to the jury.
[1] A directed verdict in favor of a defendant is improper when there is sufficient evidence, together with reasonable inferences, to warrant submitting the issue of the defe…
[2] A hospital employee furnished to assist in an operation may be subject to a jury's determination of negligence in the performance of that operation.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Our study of the record reveals sufficient evidence together with reasonable inferences therefrom which warranted submitting to the jury the issue of the negligence vel non of Dr. Bustamante and Mercy Hospital.”
Establishes the court's standard for evaluating whether a directed verdict was proper—sufficient evidence and reasonable inferences must exist to submit the issue to the jury.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDr. Maybarduk performed surgery on Margie L. Ricks at Mercy Hospital, assisted by Dr. Bustamante, a hospital employee. A hemostat or Kocher clamp was …
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DOWNEY, Judge.
Appellant Doctor Alexander P. Maybar-duk performed an operation upon appellant Margie L. Ricks in appellee Mercy Hospital. Dr. Maybarduk was assisted in the operation by appellee Doctor Alberto S. Bustamante, an employee of appellee Mercy Hospital, who had been furnished by the hospital to assist in the operation. A second operation was necessitated to remove a hemostat or Kocher clamp which had inadvertently been left in Mrs. Rick’s abdomen during the first operation.
Mrs. Ricks and her husband sued Dr. Maybarduk, Dr. Bustamante, and Mercy Hospital (and their respective insurance carriers) for negligence in the performance of the first operation. Dr. Maybar-duk cross-claimed against Dr. Bustamante and Mercy Hospital alleging that, as to the negligence charged in the Ricks complaint, Dr. Bustamante was the active tortfeasor and Dr, Maybarduk simply a passive tortfeasor. The trial court dismissed said cross-claim and this court reversed and reinstated the cross-claim in Maybarduk v. Bustamante, Fla.App.1974, 294 So. 2d 374.
Pending that appeal the Ricks case was tried upon the plaintiffs’ complaint and defendants’ answers. The trial court directed a verdict in favor of the defendants Dr. Bustamante and Mercy Hospital and their insurance carriers on plaintiffs’ complaint and directed a verdict for plaintiffs and against Dr. Maybarduk and his insurance carrier on the issue of liability. The jury returned a verdict for the plaintiffs and against Dr. Maybarduk and his insurance carrier for a total of $50,000.
All appellants contend that the trial court erred in directing the verdict for appellees Bustamante and Mercy Hospital and in entering judgment thereon. Neither appellants Ricks nor appellant May-barduk have sought review of the $50,000 judgment for the appellants Ricks and against appellant Maybarduk based upon the jury verdict.
Our study of the record reveals sufficient evidence together with reasonable inferences therefrom which warranted submitting to the jury the issue of the negligence vel non of Dr. Bustamante and Mercy Hospital.
Accordingly, the judgment for appellees Bustamante, Mercy Hospital, and their respective carriers is reversed and the cause is remanded for a new trial on the issue vel non of the negligence of Bustamante and Mercy Hospital as raised by the Ricks complaint and the Maybarduk cross-claim.
Reversed and remanded.
OWEN, J., and SEAY, RUSSELL E„ Jr., Associate Judge, concur.