ANNE B. REYNOLDS, APPELLANT,
v.
JAMES N. BURT, M. D., APPELLEE

Fla. 1st DCA | 1978-06-06
No. II-142
McCORD, C. J., and MELVIN, J., concur.
359 So. 2d 50 Florida District Court of Appeal, First District (1978) Caution
Cited by 15 cases

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.

Synopsis

Appellant Reynolds appealed a summary judgment granted in favor of Dr. Burt in a medical malpractice case involving an allegedly negligent fulguration procedure. The court affirmed the summary judgment, holding that expert testimony is required in complex surgical negligence cases when the defendant presents unrebutted expert evidence establishing the standard of care.


Holding

Summary judgment was proper. While expert testimony is not required in obvious medical negligence cases (such as leaving a surgical instrument in a patient), expert testimony is required in complex surgical cases such as this one. When expert witnesses uniformly testify that the defendant did not breach the standard of care and the plaintiff introduces no contradictory evidence, summary judgment is appropriate.


Headnotes

[1] In medical malpractice actions, expert testimony is generally required to establish negligence, unless the negligence is so obvious that it does not require expert opinio…

[2] A plaintiff's failure to present any evidence, including expert testimony, to support a claim of medical negligence, while the defendant presents expert testimony refutin…

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

Key Quotes

“in many cases involving improper treatment a jury may reach a conclusion without the aid of expert testimony. The Court did not hold that there would never be cases involving a charge of improper treatment in which expert testimony would be required to prove the negligence alleged.”

Distinguishes Atkins v. Humes to establish that expert testimony is required in complex medical cases, not just obvious ones.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Reynolds underwent a fulguration procedure performed by Dr. Burt, which allegedly resulted in a perforated bladder. Before filing suit, Reynolds pursu…

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.


Opinion of the Court
BOYER, Judge.

BOYER, Judge.

Appellant (plaintiff below) here appeals from a final judgment granting the defendant’s (appellee’s) motion for summary judgment.

Appellant filed a complaint alleging that appellee negligently performed a surgical procedure known as “fulguration” and that as a direct and proximate result burned a hole in her bladder. Prior to filing her complaint, appellant filed a claim under the Medical Malpractice Reform Act. The mediation panel found appellee not actionably negligent in his care or treatment of appellant.

After answering the complaint, appellee moved for a summary judgment. At the hearing on the motion appellant’s attorney did not object to the trial court’s consideration of portions of the file in the medical mediation action. In that action, the depositions of several doctors were taken. In their depositions the doctors testified that with a fulguration procedure, even with the best of care, bladder perforations will occur; that perforation of a bladder during a fulguration procedure can be expected 10% of the time; that appellee was not guilty of any negligence; and that the treatment which appellant received from appellee did not fall below the standards of care in the area.

Appellant did not introduce any evidence at the hearing in support of her claim, expert nor otherwise, and the trial court granted the appellee’s motion for summary judgment.

In this appeal plaintiff’s primary contention is that where the charge of negligence is based on improper treatment, the question of negligence is a jury question and may be submitted to the jury even in the absence of expert testimony in support of the charge of negligence. Atkins v. Humes, 110 So. 2d 663 (Fla.1959). However, in Atkins, the Supreme Court merely said that in many cases involving improper treatment a jury may reach a conclusion without the aid of expert testimony. The Court did not hold that there would never be cases involving a charge of improper treatment in which expert testimony would be required to prove the negligence alleged.

We well recognize that expert testimony may not be required in obvious cases such as when the charge of negligence concerns leaving a sponge or surgical instrument in a patient or where a surgeon amputates the wrong limb. However, in a case such as this, where the expert testimony of several doctors uniformly concur that appellee was not guilty of negligence and appellant failed or refused to introduce any evidence in support of her claim and in contradiction of appellee’s expert witnesses, the entry of a summary judgment was proper. Sims v. Helms, 345 So. 2d 721 (Fla.1977); Thomas v. Berrios, 348 So. 2d 905 (Fla. 2nd DCA 1977).

Another matter which deserves comment is the action of the trial judge in considering depositions taken in another proceeding which had not been made a part of the record in this case. It is improper for a trial judge to consider matters dehors the record except upon stipulation of the parties, or, of course, when judicial notice may appropriately be taken. One obvious reason for such a rule is that evidence and matters outside the record may not there after be properly made a part of the record on appeal for review by an appellate court. However, the appellant did not object in the trial court. Since the point was not preserved on appeal, there is no basis for this court to address the issue.

The judgment appealed from is affirmed.

McCORD, C. J., and MELVIN, J., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • …lcin was advised of this risk or that not advising her of this risk was in accordance with accepted standards of medical practice. See Holl v. Talcott, 191 So. 2d 40 (Fla.1966); Shores v. Wegmann, 370 So. 2d 87 (Fla. 1st DCA 1979); Reynolds v. Burt, 359 So. 2d 50 (Fla. 1st DCA 1978); Mejiah v. Rodriguez, 342 So. 2d 1066 (Fla. 3d DCA 1977). It cannot be said that the hospital conclusively showed that Mrs. Valcin was advised of the risk of an ectopic pregnancy. The “Consent for Authorization for Sterilization…
  • Willage v. The LAW Offs. OF Wallace & Breslow, P.A., 415 So. 2d 767 (Fla. 3d DCA 1982)
    …to call a purported witness constituted negligence, where in the attorney’s opinion, the witness on cross examination could have given testimony damaging to plaintiff’s case.1 See, e.g., Sims v. Helms, 345 So. 2d 721 (Fla.1977) and Reynolds v. Burt, 359 So. 2d 50 (Fla. 1st DCA 1978). A party may not, after having given an affidavit in a cause, subsequently change his testimony in order to create an [*769] issue on his opponent’s motion for summary judgment. Ellison v. Anderson, 74 So. 2d 680 (Fla.1954); Inm…
  • Mitchell v. Maria S. Angulo, M.D., 416 So. 2d 910 (Fla. 5th DCA 1982)
    …milar health care provider” under section 768.45, Florida Statutes (1981), granted appellee’s motion to strike. Since Dr. Van Ore was the only expert the appellant had, the court entered a summary judgment for the appellee based on Reynolds v. Burt, 359 So. 2d 50 (Fla. 1st DCA 1978), and the need for expert testimony in the case, as agreed on by both parties. Mitchell filed a motion for rehearing on October 23, 1981, claiming that the ruling on the motion to strike the expert was contrary to the evidence in…

Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw