KATHLEEN ANDERSON, APPELLANT,
v.
DR. HOWARD GORDON ET AL., APPELLEES
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A patient appealed a jury verdict in a medical malpractice case arising from a breast reduction surgery that resulted in tissue loss and scarring. The appellate court affirmed the jury's verdict for the defendant surgeon, holding that the trial court properly refused to instruct the jury on res ipsa loquitur because expert testimony was required to establish negligence.
The trial court properly refused the res ipsa loquitur instruction because the evidence did not support a finding that the impaired blood circulation could only have resulted from the defendant's failure to exercise due care. The rule cannot be applied when expert medical evidence is required to establish not only what was done but how and why it occurred, as such matters lie outside the layman's experience. Unsuccessful surgical results alone do not raise an inference of negligence.
[1] To be entitled to an instruction on res ipsa loquitur, the plaintiff's proof must eliminate every conclusion other than that the defendant was at fault.
[2] In medical malpractice actions, res ipsa loquitur may be invoked only when a layman can determine from common knowledge that the outcome would not have occurred without n…
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Join FLexlaw to unlock all legal intelligence“To be entitled to an instruction on the application of the rule of res ipsa loquitur, plaintiff's proof must show that the circumstances eliminate every other conclusion save that the defendant was at fault.”
Establishes the stringent standard required to invoke res ipsa loquitur in any negligence action
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Join FLexlaw to unlock all legal intelligenceKathleen Anderson underwent a reduction mammoplasty performed by Dr. Howard Gordon using the Strombeck technique, which removes tissue while attemptin…
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HAVERFIELD, Judge.
Plaintiff in a medical malpractice action appeals an adverse final judgment entered pursuant to a jury verdict for the defendant.
The unfortunate series of events giving rise to this litigation began when plaintiff-appellant, Kathleen Anderson, consulted with Dr. Howard Gordon, defendant-ap-pellee, for the purpose of having her breasts reduced and consented to his performing a reduction mammoplasty (a breast reduction operation). Employing the Strombeck technique which helps to maintain the patients’ circulatory system in the breasts, thus reducing post operative necrosis (deadening of tissue), the defendant performed a 2i^ hour operation removing more than 1,500 grams of tissue. Unfortunately, after the surgery plaintiff lost 30% additional breast tissue due to impaired circulation resulting in scarred, unevenly shaped breasts.
Plaintiff contends the defendant committed malpractice through the misapplication of an accepted surgical procedure known as the Strom-beck technique.
At trial, plaintiff requested that an instruction on res ipsa loquitur be given to the jury which was refused.
The jury returned a verdict finding for the defendant and final judgment was entered. Her motion for new trial being denied, plaintiff perfected this appeal and urges as reversible error the failure to instruct the jury on the application of the rule of res ipsa loquitur. To be entitled to an instruction on the application of the rule of res ipsa loquitur, plaintiff’s proof must show that the circumstances eliminate every other conclusion save that the defendant was at fault. See McKinney Supply Co. v. Orovitz, Fla. 1957, 96 So. 2d 209 and Martin v. Powell, Fla.App.1958, 101 So. 2d 610. Further, in medical malpractice actions the rule may be invoked only where a layman is able to say as a matter of common knowledge and observation that the consequences of the professional treatment were not such as ordinarily would have followed if due care had been exercised. The rule, however, may not be applied where expert medical evidence is required to show not only what was done, but how and why it occurred since the question is then outside the realm of the layman’s experience. See Annot., 162 A.L.R. 1265, 1269 (1946).
Last, the fact that the treatment was unsuccessful or terminated with poor or unfortunate results does not of itself raise an inference of negligence nor is it sufficient to invoke the doctrine of res ipsa loquitur. Trotter v. Hewett, Fla.App.1964, 163 So. 2d 510.
In the instant case the evidence reflects that plaintiff’s necrosis was caused by impaired blood circulation in her breasts subsequent to the operation. Nevertheless, plaintiff’s proof does not support the finding that this impairment to the blood circulation could not have resulted except that the defendant failed to exercise due care. Thus, an instruction with regard to res ipsa loquitur was not warranted. In the final analysis both parties presented expert testimony as to whether defendant was negligent. The jury having resolved this issue in favor of the defendant and there being competent substantial evidence to support the verdict, we will not disturb it on appeal.
Affirmed.
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Chenoweth v. William L. Kemp, M.D., 396 So. 2d 1122 (Fla. 1981)…the defendant is the probable actor.” Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 [*1126] So. 2d 1339, 1342 (Fla.1978). See Guzman v. Faraldo, 373 So. 2d 66 (Fla. 3d DCA 1979), cert. denied, 383 So. 2d 1195 (Fla.1980); Anderson v. Gordon, 334 So. 2d 107 (Fla. 3d DCA 1976). The judgment is affirmed. It is so ordered. ADKINS, BOYD, ALDERMAN and McDONALD, JJ., concur. SUNDBERG, C. J., dissents with an opinion, with which ENGLAND, J., concurs. . MR. VARNER: Is it Your Honor’s ruling that this part…
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M. David Sims, M.D. v. Helms, 345 So. 2d 721 (Fla. 1977)…ractice. Negligence cannot be inferred from the fact that the surgery was unsuccessful or terminated in unfortunate results. Bourgeois v. Dade County, 99 So. 2d 575 (Fla.1957); Hill v. Boughton, 146 Fla. 505, 1 So. 2d 610 (1941); Anderson v. Gordon, 334 So. 2d 107 (Fla. 3d DCA 1976). In O’Grady v. Wiekman, supra, two doctors were sued for essentially the same act with which petitioner is charged. During a hysterectomy operation the patient’s bladder was inadvertently entered. The bladder was repaired, and th…
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Norman Kenyon, M.D. v. Miller, 756 So. 2d 133 (Fla. 3d DCA 2000)…hat the surgery was unsuccessful or terminated in unfortunate results.” Sims v. Helms, 345 So. 2d 721, 723 (Fla.1977)(citing Bourgeois v. Dade County, 99 So. 2d 575 (Fla.1956); Hill v. Boughton, 146 Fla. 505, 1 So. 2d 610 (1941); Anderson v. Gordon, 334 So. 2d 107 (Fla. 3d DCA 1976)). Moreover, the mere fact that a doctor’s treatment was unsuccessful or terminated with poor results is not sufficient to invoke the doctrine of res ipsa loquitur. See Anderson, 334 So. 2d at 109, (citing Trotter v. Hewett, 163 So…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McKINNEY Supply Co. v. Orovitz, 96 So. 2d 209 (Fla. 1957)
- Trotter v. Hewett, 163 So. 2d 510 (Fla. 3d DCA 1964)
- Martin v. Powell, 101 So. 2d 610 (Fla. 2d DCA 1958)
- Marjore Warwick LEE and Evaline Warwick Pearce v. Morrissey & Vogel, 101 So. 2d 610 (Fla. 3d DCA 1958)