CHERYLANN HOBBS ET AL., APPELLANTS,
v.
FLOYD MICHAEL SAUERS AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, AN ILLINOIS CORPORATION, APPELLEES
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Plaintiff Cherylann Hobbs appealed a directed verdict entered against her in an auto accident injury case. The trial court improperly excluded testimony from her treating physician regarding the permanency of her injuries, and the appellate court reversed and remanded for a new trial.
The trial court improperly excluded Dr. Davis's testimony because he was a treating physician rather than an examining physician under Marshall v. Papineau, and his testimony constituted an exception to the hearsay rule. Had his testimony been admitted, it would have created a justiciable issue of fact properly determinable by the jury.
[1] A physician who treats a patient is considered a treating physician, not merely an examining physician, for purposes of testifying about the patient's injuries.
[2] The testimony of a treating physician regarding a patient's injuries is generally admissible as an exception to the hearsay rule.
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“Dr. Davis was a "treating physician" whose testimony was improperly excluded from evidence by the trial court.”
Establishes the key distinction that determined the outcome—the lower court mischaracterized the physician as examining rather than treating.
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Join FLexlaw to unlock all legal intelligenceHobbs was injured in an automobile accident with defendant Floyd Sauers. She brought suit claiming permanent injury within the meaning of Florida's no…
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KEHOE, Judge.
Appellant, plaintiff below, appeals a final judgment entered pursuant to a directed verdict in favor of appellees. We reverse.
Appellant brought the instant action as a result of injuries she allegedly sustained in an automobile accident with appellee Floyd M. Sauers. The gravamen of appellant’s complaint was that, because of the accident, she had sustained permanent injury within reasonable medical probability. § 627.737, Fla.Stat. (1975).
During the course of the trial, the testimony of one of appellant’s witnesses, Jordan Davis, M.D., was excluded from evidence. Doctor Davis’s testimony involved, among other things, the permanency of appellant’s injuries. However, the trial court determined that Dr. Davis was an “examining physician” who was ineligible to testify under the rationale of Marshall v. Papineau, 132 So. 2d 786 (Fla. 1st DCA 1961), and its progeny. Thereafter, at the close of appellant’s case, the trial court entered a directed verdict in favor of appellees. Pursuant to the directed verdict, the trial court entered a final judgment in favor of appel- lees. From this final judgment, appellant appeals.
Appellant contends that Dr. Davis’s testimony was improperly excluded because he was not an “examining physician” under the rationale of the Marshall case, but rather was a “treating physician” whose testimony in regard to appellant’s complaint was an exception to the hearsay rule.
We agree with appellant’s contention. Our review of the record leads us to the conclusion that Dr. Davis was a “treating physician” whose testimony was improperly excluded from evidence by the trial court. Further, we are of the opinion that if Dr. Davis’s testimony had been admitted, it would have created a justiciable issue of fact which was properly determinable by the jury. See Parker v. Martin, 338 So. 2d 230 (Fla. 3d DCA 1976); Bill Kelley Chevrolet, Inc. v. Kerr, 258 So. 2d 280 (Fla. 3d DCA 1972); Steiger v. Massachusetts Casualty Insurance Co., 253 So. 2d 882 (Fla. 3d DCA 1971); and City of Hialeah v. Hutchins, 215 So. 2d 496 (Fla. 3d DCA 1968).
Accordingly, the final judgment entered by the trial court is reversed, and the cause is remanded for further proceedings consistent with this opinion.
Reversed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Ervin Baker v. State, 132 So. 2d 786 (Fla. 1st DCA 1961)
- Marshall v. Papineau, 132 So. 2d 786 (Fla. 1st DCA 1961)
- Steiger v. Mass. Cas. Ins. Co., 253 So. 2d 882 (Fla. 3d DCA 1971)
- Hall v. State, 215 So. 2d 496 (Fla. 3d DCA 1968)
- Booker T. Wright v. State, 258 So. 2d 280 (Fla. 2d DCA 1972)
- Bill Kelley Chevrolet, Inc. v. Kerr, 258 So. 2d 280 (Fla. 3d DCA 1972)
- Parker v. Green Martin, Jr., 338 So. 2d 230 (Fla. 3d DCA 1976)