Opinion
No. 87-1492.
October 11, 1989. Rehearing Denied November 16, 1989.
Appeal from the Circuit Court, Duval County, Peter D. Webster, J.
Eugene Loftin, Jacksonville, for appellants.
Thomas S. Edwards, Jr. and Charles C. Howell, III, Jacksonville, for appellee.
Jerri Taletha Holman and her parents, Jeff and Sandra Holman, appeal a final judgment entered in this medical malpractice action pursuant to a jury verdict for Mark N. Goldschmidt, M.D. We reverse and remand upon the holdings that the trial court erred in ruling that there was no triable issue regarding Dr. Goldschmidt's liability for the negligent acts of Dr. Soud, if any, and that the court erred in refusing to give the requested standard jury instruction 5.1(b) on concurring causes. We find no merit in appellant's two remaining points.
On August 12, 1983, Jeff and Sandra Holman took Taletha, their six-year old daughter, to Dr. Goldschmidt's office because she was experiencing fever, vomiting, loss of appetite, and abdominal pains. Dr. Goldschmidt, a pediatrician, diagnosed Taletha's condition as an intestinal virus. On August 14, 1983, Mrs. Holman called Dr. Goldschmidt's office because Taletha's condition had deteriorated. Dr. Goldschmidt was off that weekend and Dr. Gary Soud, who was "covering" for Goldschmidt, returned the Holmans' call. The substance of this conversation is disputed. Dr. Soud testified that he was told that Taletha was not experiencing any abdominal pain, whereas Mrs. Holman testified that she told Dr. Soud that Taletha still was experiencing abdominal pain. The testimony was undisputed that Dr. Soud advised the Holmans to continue to give Taletha clear liquids and requested them to call him back if Taletha did not urinate within the following few hours. Taletha did urinate and Mrs. Holman did not call Dr. Soud back that evening. The severity of Taletha's condition over the next two days is a matter of some dispute. On August 16, 1983, however, Mrs. Holman called Dr. Goldschmidt's office and stated that Taletha continued to exhibit the same symptoms, and in response she was given an appointment for August 17. Later on August 16 the Holmans took Taletha to a hospital emergency room where doctors determined that she was suffering severe peritonitis as the result of a perforated appendix and immediately performed surgery. Taletha's surgeon testified that he found two quarts of pus in her pelvic area and that she would have adhesions in her abdomen for life.
Subsequently, the Holmans brought this malpractice suit against Dr. Goldschmidt alleging that he was negligent in his care and treatment of Taletha. At trial, Dr. Goldschmidt disputed the Holman's version of the history and descriptions of Taletha's condition given to him and Dr. Soud during their several conversations. The jury returned a verdict for Dr. Goldschmidt. Each of the issues the Holmans raise on this appeal stems from alleged erroneous rulings made during the trial.
I.
First, appellants assert that the court erred in not permitting the jury to consider whether Dr. Goldschmidt was responsible for the acts of Dr. Soud on August 14, 1983. The court made the disputed ruling at the charge conference, following denial of appellants' request to have the jury instructed that Dr. Goldschmidt "is responsible for any negligence of his agent, Dr. Gary Soud, on August 14, 1983, in providing health care services for Jerri Taletha Holman" (emphasis added). The court ruled that appellants failed to plead or present any evidence of an agency relationship between Drs. Goldschmidt and Soud and denied appellants' motion to so amend the pleadings to conform to the evidence. The court precluded the jury from considering whether Dr. Goldschmidt should be held liable for Dr. Soud's actions and stated that "the only issue in the case" was whether "Dr. Goldschmidt negligently failed to diagnose the child." Appellee contends that the trial court correctly refused to submit this issue to the jury because the complaint did not name Dr. Soud as Dr. Goldschmidt's agent, did not allege that Dr. Soud negligently failed to advise the Holmans that Taletha was in need of further medical treatment, and did not allege that Dr. Goldschmidt was otherwise legally responsible for any negligence on the part of Dr. Soud.
A.
No Florida court decision appears to have addressed whether the agency of one acting for the principal must be explicitly pleaded in a tort case, but this pleading issue has been addressed in the context of a contract case. The rule in Florida is that one suing on a contract made for the defendant by his agent need not allege the agency in the complaint; it is sufficient for the plaintiff to allege the legal effect of the agent's action on the defendant's legal liability. Maestrelli v. Arrigoni, Inc., 476 So.2d 756 (Fla. 5th DCA 1985). The fifth district explained in Maestrelli that the issue of a principal's liability for the acts of his agent is not a "theory of liability" in the sense of a cause of action that must be pleaded to invoke the trial court's subject matter jurisdiction and meet due process requirements.
Appellee has not offered, and we cannot perceive of, any rationale for applying a different rule in this case because it is a tort, rather than a contract, action. On the contrary, the general consensus of decisions from other jurisdictions that have considered this pleading issue in the context of tort cases is that a complaint in an action against a principal for the tort of his agent need not disclose that the act complained of was not committed by the principal himself but was the act of the agent. See Annot., 4 A.L.R.2d 292 (1949) (generally stating that a plaintiff's pleading in such an action is sufficient if it charges misconduct against the principal defendant personally without mention of the servant or agent).
We hold that the allegations in paragraphs 7, 14 and 15 of the complaint were sufficient to allow appellants to present evidence of Dr. Soud's actions on August 14 in responding to the call to Dr. Goldschmidt as evidence of negligence in fulfilling the latter's continuing duty of care in respect to the treatment of Taletha. The complaint alleges that Dr. Goldschmidt undertook to diagnose and treat Taletha for abdominal complaints on August 12, when she was first presented to his office. The allegations of the complaint are sufficient to give notice that pursuant to this undertaking the Holmans were looking to Dr. Goldschmidt, and not others unknown to them, to provide follow-up care during the ensuing days. The allegations also give notice that because Taletha was not doing well after a day or so, the Holmans called Dr. Goldschmidt's office on August 14 and received instructions for continued treatment from someone unnamed in the complaint, but who must have been either Dr. Goldschmidt himself or someone authorized to act for him in the care of his patients during his absence, such as Dr. Soud was shown to be. Since it was not necessary as a matter of pleading to name the person who responded on Dr. Goldschmidt's behalf, these allegations were sufficient to permit the court to receive evidence proving that, as a matter of fact, someone else was acting for Dr. Goldschmidt at the time of the Holmans' telephone call on August 14 and that this person did so negligently in the manner alleged. See cases cited in the annotation at 4 A.L.R.2d 292 and the 1988 supplement thereto.
These allegations read as follows:
7. On August 14, 1983, Sandra Gail Holman called the office of Mark N. Goldschmidt, M.D. from her home and related that her child, Jerri Taletha Holman, had the same symptoms except she was definitely worse and there was no urination or bowel movement. There was no indication given to Sandra Gail Holman that her child was in need of further medical treatment.
14. Notwithstanding said agreement and undertaking, Mark N. Goldschmidt, M.D. rendered medical care and treatment to the minor plaintiff in a manner described in the previous paragraphs which is a departure from the accepted and reasonable standards of medical care and treatment for physicians in such cases.
15. Jerri Taletha Holman received negligent care and treatment consisting of a failure by Mark N. Goldschmidt, M.D. to diagnosis [sic] her symptoms as appendicitus [sic] and failing to alert Sandra Holman about the need of additional medical care.
The dissent argues that although the complaint need not allege the agency of Dr. Soud to hold the defendant liable for his conduct when acting as an agent on behalf of Dr. Goldschmidt, nevertheless the complaint must identify Dr. Soud and allege what he did that constitutes negligence. Such contention is not supported by the numerous cases cited in the annotation referred to (many of which were decided under more strict common law rules of pleading prior to adoption of the liberal pleading practices allowed by the Federal Rules of Civil Procedure and state rules following that lead, such as the Florida rules). Nor is it supported by any Florida decision coming to our attention.
B.
Reversal on this issue is further buttressed by our conclusion that the parties knowingly tried the issue of Dr. Soud's negligent acts on behalf of Dr. Goldschmidt. Despite the lack of identification of Dr. Soud in the complaint and the lack of specific allegations that Dr. Soud was acting for Dr. Goldschmidt on August 14, and despite the fact that no such issue was specifically identified in the pretrial order, this issue was tried by both parties without any basis for surprise to the defendant at trial and without any hint of "sandbagging" or playing "gotcha" by the plaintiff. The following statement by Dr. Goldschmidt's attorney at the Holmans' pretrial discovery deposition of Dr. Soud demonstrates the defendant's understanding of the issues raised by the pleadings and belies any notion that appellee was unfairly surprised by appellants' attempt to have the jury consider this issue at trial:
Let me just object at this point. Number one, your expert [Dr. Abramson] has already testified this gentleman [Dr. Soud] was operating as an agent of my doctor and was working with my doctor. And I have the right to speak to people that are working with him. And, according to your expert, that's the situation.
If you all want to drop any allegation pertaining to my doctor being responsible for this gentleman's alleged negligence, then we'll cross that bridge —
(Emphasis added) (Soud deposition at p. 9).
Consistent with this expression of the issues, Dr. Goldschmidt's counsel did not object at trial to appellants' presentation of Dr. Abramson's deposition testimony wherein Abramson testified that Dr. Soud deviated from the appropriate standard of care in not instructing appellants on August 14 to immediately take Taletha to him or to the hospital for examination (R. 245). Likewise, appellee's counsel did not object to Dr. Abramson's deposition testimony that appellee was responsible for Dr. Soud's negligence (R. 243). Appellee's own counsel elicited testimony from Dr. Soud that he and appellee had an arrangement whereby they would each take off one weekend a month and one-half day a week, and during their time off each doctor would cover for the other (R. 465-466); that the Holmans called appellee's office on August 14 and Dr. Soud returned that call because he was "covering" for appellee (R. 482-483); and that Dr. Soud would bill appellee's patients directly when covering for appellee (R. 466). Appellee's counsel also questioned both Drs. Talbert and Colyer as to whether the actions of Dr. Soud comported with the appropriate standards of care (R. 534-535, 618, 619). This testimony was not relevant to the issue of Dr. Goldschmidt's negligence in diagnosing Taletha on August 12, the single issue allowed to go to the jury; it was relevant only to rebut the contention that Dr. Soud acted negligently in treating Taletha on behalf of Dr. Goldschmidt. At the very least, the testimony taken as a whole presented an issue for the jury concerning Dr. Goldschmidt's responsibility for any negligence of Dr. Soud in responding to the call on August 14.
The order setting this case for oral argument directed the "parties to be prepared to argue the applicability of the doctrine of nondelegable duties to the facts of this case." However, appellants' attorney did not request a jury instruction on the law pertaining to nondelegable duties, see e.g., Irving v. Doctors Hospital of Lake Worth, Inc., 415 So.2d 55 (Fla. 4th DCA), rev. denied, 422 So.2d 842 (Fla. 1982), and did not argue such issue in their brief on this appeal; therefore, we expressly decline to consider the applicability of that doctrine in this case one way or the other. The suggestion in the dissent that this note implies approval of its applicability to these facts is a complete misreading of this note.
We do not find Tamiami Trail Tours, Inc. v. Cotton, 463 So.2d 1126 (Fla. 1985), controlling on this issue. The facts recited above belie any semblance of suprise to appellee's counsel that appellants were contending that Dr. Goldsmith was liable for the negligent acts of Dr. Soud, a critical factor missing in the Tamiami Trail Tours case. There simply is no basis upon which to conclude the defendant's counsel were sandbagged by the failure to amend as to the agency issue. We are not prepared to read either Tamiami Trail Tours or Arky, Freed, Stearns, Watson, Greer, Weaver Harris, P.A. v. Bowmar Instrument Corp., 537 So.2d 561 (Fla. 1988), as standing for the proposition that an attorney can state during pretrial depositions that the pleadings raise an agency issue that permits his examination of the witness on that issue, and thereafter successfully urge at trial that no such issue was ever pleaded and he is now surprised by the injection of the issue in the trial.
When an unpleaded issue is tried by express or implied consent, it is to be treated in all respects as if raised by the pleadings, whether or not a motion is made to amend the pleadings to conform to the evidence. Rule 1.190(b), Fla.R.Civ.P.; Di Teodoro v. Lazy Dolphin Development Company, 418 So.2d 428 (Fla. 3d DCA 1982), pet. for rev. denied, 427 So.2d 737 (Fla. 1983). As noted previously, defendant did not object to any of the evidence on this issue, and in view of defense counsel's stated understanding of the issues during pretrial discovery, there was no apparent prejudice to the defendant in maintaining his alleged defense. Thus, notwithstanding the sufficiency of the complaint to allege the issue of Dr. Goldschmidt's liability for Dr. Soud's negligent acts on August 14, the issue was ripe for the jury's determination by virtue of having been tried by the parties' implied, if not express, consent. The court's denial of appellants' motion to amend the pleadings to conform to the evidence and the consequent foreclosure of any issue and argument regarding Dr. Goldschmidt's responsibility for Dr. Soud's negligence deprived the appellants of their right to have the jury decide an essential issue and constitutes reversible error requiring a new trial on all issues. See Doctors Memorial Hospital, Inc. v. Evans, 543 So.2d 809 (Fla. 1st DCA, 1989).
Rule 1.190(b) specifies:
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure so to amend shall not affect the result of the trial of these issues. If the evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended to conform with the evidence and shall do so freely when the merits of the cause are more effectually presented thereby and the objecting party fails to satisfy the court that the admission of such evidence will prejudice him in maintaining his action or defense upon the merits.
II.
The second issue raised on appeal is whether the trial court erred in denying the Holmans' request to give standard jury instruction 5.1(b) on concurring causes. For the following reasons, we hold it was error to deny the requested instruction.
The requested instruction reads:
In order to be regarded as a legal cause of loss, injury, or damage, negligence need not be the only cause. Negligence may be a legal cause of loss, injury, or damage, even though it operates in combination with the act of another, some natural cause, or some other cause if such other cause occurs at the same time as the negligence and if the negligence contributes substantially to producing such loss, injury, or damage.
Following standard jury instruction 5.1(a), the trial court instructed the jury that:
Negligence is a legal cause of loss, injury or damage if it directly and in natural and continuous sequence produces or contributes substantially to producing such loss, injury or damage, so that it can reasonably be said that, but for the negligence, the loss, injury or damage would not have occurred.
(R. 733.) This "but for" instruction, standing alone, is obviously sufficient when only one operative cause of a plaintiff's injury is present. However, it usually is misleading if two or more causes are present because the instruction, without further explanation, indicates to the jury that a defendant would be liable only if the resulting injury would not have occurred unless the defendant had been negligent; that is, that the defendant's negligence was the only cause of the resulting injury. For this reason, the standard jury instructions also include an instruction on concurring cause when two or more operative causes are present. See generally, Stahl v. Metropolitan Dade County, 438 So.2d 14, 17-19 (Fla. 3d DCA 1983). The legal concept of concurring cause is not a matter of common knowledge among lay persons, and apparently is a matter of some confusion to lawyers and judges. Therefore, the "idea that a defendant is not excused from the consequences of his negligence by reason of some other cause concurring in time and contributing to the same damage" is not something the courts should assume the average juror comprehends without assistance by proper instruction from the court.
See the comments of the court in Wilson v. Boca Raton Community Hospital, Inc., 511 So.2d 313 (Fla. 4th DCA), rev. denied, 519 So.2d 988 (Fla. 1987).
The note on the use of Charge 5.1(b) states:
Charge 5.1(b) (Concurring cause) to be given when the court considers it necessary, does not set forth any additional standard for the jury to consider in determining whether negligence was a legal cause of damage but only negates the idea that the defendant is excused from the consequences of his negligence by reason of some other cause concurring in time and contributing to the same damage.
By its own terms, the concurring cause instruction is to be given when the cause attributed to the defendant's negligence "operates in combination with [the act of another] [some natural cause] [or] some other cause if such other cause occurs at the same time as the negligence and if the negligence contributes substantially to producing such" injury. Thus, the instruction is appropriate in cases where the other operative causes are attributable to the negligent conduct of one other than the defendant, the negligent conduct of the plaintiff, and a natural condition acting to produce the injury. The critical requirement is that the defendant's negligence be a substantial cause of the injury whether or not the injury would have occurred in the absence of such negligence. See generally, Voght, Tests of Causation and the Florida Jury Instructions — The Current Conflict and the Need for a Change, 32 Fla.L.Rev. 308 (1980).
In Goodman v. Becker, 430 So.2d 560 (Fla. 3d DCA 1983), the trial court denied a concurring cause instruction in a medical malpractice case in which the plaintiff Goodman "had suffered a severe stroke after an operation conducted under general anesthesia" by the defendant Becker, an oral surgeon. The court noted that "the plaintiff's basic position at trial, supported by competent expert testimony to that effect, was that Goodman's circulatory and hypertensive problems, as manifested by symptoms of which Becker was or should have been aware, rendered it inadvisable and negligent to perform the operation, and that the stroke was caused by the effect of the procedure, particularly the anesthesia, acting upon and combined with the plaintiff's pre-existing physical condition." Judge Schwartz, writing for the court, held that it was reversible error to deny the requested instruction because the charge "correctly reflects the equally unassailable principle that a wrongdoer remains liable for a consequent harm when the result is caused by a congruence of his own negligent act with a natural force or condition, often called an `Act of God,' such as Goodman's pre-existing physiological and anatomical status." 430 So.2d at 561. He also observed that, "Since the right to a jury instruction arises when there is any evidence to support it, [citations omitted], the acknowledged existence of contrary testimony on these points — to the effect that the doctor was not negligent and that the stroke would have occurred anyway — is immaterial." Id. at 561, n. 2.
Likewise, in Marrero v. Salkind, 433 So.2d 1224 (Fla. 3d DCA 1983), a medical malpractice action for the wrongful death of the plaintiff's wife, the wife had suffered complications in three prior pregnancies and was identified as a high risk patient who required careful monitoring during her fourth pregnancy. When the fetus was mature, the defendant physicians induced labor utilizing a certain drug, and the wife experienced distress during delivery and died of a massive amniotic fluid embolism. The baby was delivered alive shortly thereafter by Caesarean section. Plaintiff contended at trial that the evidence showed the death "was caused by the negligence of the doctors, in combination with a natural cause, the amniotic embolism." Id. at 1225. On the authority of Goodman v. Becker, 430 So.2d 560, the court reversed for a new trial based on the trial court's refusal to give the concurring cause instruction.
In Tilley v. Broward Hospital District, 458 So.2d 817 (Fla. 4th DCA 1984), a medical malpractice action for the death of plaintiff's infant son, the baby had numerous medical problems shortly after a premature birth, and surgery was performed on two occasions. There was evidence that a surgical sponge was left in the child after the second surgery, after which the child developed an infection and died. "The hospital contended death was due to natural causes including the prematurity of birth; the Tilleys contended death was due to the negligence of the hospital and its employees in delivering and treating the baby." Id. at 818. Reversing the trial court for denying a concurring cause instruction on the authority of the above two decisions, Judge Barkett wrote for the court as follows:
It is clear that the omitted standard jury instruction 5.1(b) addressed a material issue in the case. The record contains much expert testimony on the inherent problems of premature babies (the "natural cause" element), as well as much expert testimony on the possibly negligent conduct of the hospital in attending to Mrs. Tilley and the child (the concurring "negligent cause" element). Therefore the instruction was applicable and should have been given.
458 So.2d at 818. The court also held that the giving of standard jury instruction 5.1(c) on intervening cause did not correct this omission.
In Miller v. Court, 510 So.2d 926 (Fla. 4th DCA 1987), once again the court reversed for failure to give a concurring cause instruction in a medical malpractice action, holding:
The standard jury instruction 5.1(b) on concurrent causes is applicable when the plaintiff's injury is caused by a doctor's negligence, acting upon and combined with the plaintiff's pre-existing physical condition. [Citations omitted.] In the instant case, there was evidence presented that Dr. Court's alleged negligence combined with Mrs. Miller's pre-existing diabetic condition causing her coma. Dr. Court's negligence was alleged to be his taking Mrs. Miller off her diabetic medicine and his failing to substitute an alternative drug. This evidence entitled Mrs. Miller to an instruction on concurring causes, and the failure to give such instruction constituted reversible error. See Goodman; Higgins; and Marrero.
510 So.2d at 927. It should be noted that appellees contended that Mrs. Miller's coma was caused by her abuse of drugs and alcohol rather than appellees' medical treatment of her, but the court held that evidence of such abuse was not admissible, thus removing this issue from consideration by the jury.
For other decisions applying the concurring cause rule in similar circumstances, see Borges v. Jacobs, 483 So.2d 773 (Fla. 3d DCA 1986); Barabas v. Rojas, 481 So.2d 1003 (Fla. 4th DCA 1986). All of these decisions recognize that a concurring cause instruction is required when the defendant's alleged negligence acts in combination with the plaintiff's ongoing medical condition to cause the resulting injury upon which suit is brought.
Likewise, the concurring cause instruction is appropriate if the plaintiff is charged with comparative negligence. Thus, in Higgins v. Johnson, 434 So.2d 976 (Fla. 2d DCA 1983), another medical malpractice action, the appealing plaintiff consulted the defendant chiropractor with complaints of low back pain, which the latter diagnosed as low back sprain and treated chiropractically for several weeks. But the plaintiff's condition grew progressively worse and ultimately resulted in serious paralysis and loss of bladder and bowel functions due to a malignancy that the defendant had failed to discover. The plaintiff sued for negligence in failing to observe proper standards of chiropractic medicine, and the defendant countered that the plaintiff was guilty of comparative negligence for failing to heed the chiropractor's suggestion to consult with a medical doctor. The court, observing that denial of the requested instructions on concurring cause and intervening cause "left the jury with only the consideration of appellee's negligence as a legal cause of appellant's injury," reversed for a new trial because the "charges on concurrent and intervening cause are necessary in assessing the negligence of the parties, not simply in assessing the damages." 434 So.2d at 977.
In Wilson v. Boca Raton Community Hospital, Inc., 511 So.2d 313 (Fla. 4th DCA), rev. denied, 519 So.2d 988 (Fla. 1987), the court noted that even if it were error under the cases cited above not to give a concurring cause instruction where the plaintiff contended that the doctor had misdiagnosed his condition and the doctor contended that the plaintiff died as a result of ingesting paraquat poisoning that "had set in motion an irreversible onset of death before the patient presented himself at the emergency room," id., nevertheless a verdict for the defendant doctor would be affirmed upon the ground that under the circumstances the jury had not been misled by omitting this instruction because the crucial questions were whether the defendant physician's "misdiagnosis was brought about because of the patient's insistence he did not ingest paraquat and whether death was certain to occur in any event by the time the patient showed up in the emergency room." Id. at 314. It seems apparent from the opinion that the critical fact in issue was whether the plaintiff had told the physician that he ingested the paraquat poisoning or whether he only said that it was sprayed upon him, and the instructions given were apparently adequate to inform the jury of the law governing its disposition of that issue.
The Wilson decision may also be explained on the rationale that the plaintiff's previous ingestion of drugs causing the illness for which treatment was sought constituted a remote condition or conduct furnishing only the occasion for the medical provider's negligence and thus was not a proximate or legal cause of the result of said provider's subsequent negligence or malpractice. See, e.g., Whitehead v. Linkous, 404 So.2d 377 (Fla. 1st DCA 1981) (Plaintiff's suicide attempt merely a preexisting condition and therefore not a legal cause of damage in medical malpractice action charging emergency room physician with negligence in failing to save plaintiff's life). We can readily understand the application of this principle to preclude an instruction on comparative negligence based on the plaintiff's suicide attempt that caused his initial physical condition requiring medical treatment, as was the case in Whitehead v. Linkous, but we do not believe it supports the denial of a concurring cause instruction where the physical condition, once set in motion, continues to operate in combination with the medical provider's negligence to produce the resulting injury. Where the plaintiff's antecedent conduct caused a progressively changing medical condition, whether or not such conduct is too remote to support the defense of comparative negligence, an instruction on concurring cause is necessary to explain the defendant's legal liability for contributing to the extent or severity of the eventually resulting injury or loss.
The above decisions collectively establish that the concurring cause instruction should be given where the plaintiff patient is properly charged with comparative negligence and where there is a concurring natural condition that operates in conjunction with the defendant's alleged malpractice. The issues and evidence in this case fit squarely within the latter circumstance. Taletha Holman suffered permanent injury as a result of the peritonitis caused by the rupture of her infected appendix. One cause of this resulting injury was unquestionably the ongoing progressive condition of the diseased appendix, while another cause was the defendant's alleged medical negligence in failing to properly diagnose and treat this condition. Undoubtedly, this ongoing condition of the diseased appendix, left untreated and unchecked, might well result in the severe peritonitis found by the surgeon. Proper treatment timely administered could reduce the severity of the results, but not necessarily prevent such results completely. So it may be said with candor that this disease process or condition by itself could have caused the peritonitis and injury despite the defendant doctor's proper diagnosis and treatment of the condition. In this sense, therefore, there is room for the jury to conclude that Taletha's injury did not occur "but for" the negligence of the defendant, as they had been instructed. But the law also authorizes recovery of damages for Taletha's resulting permanent injury caused by the ongoing natural condition so long as the defendant physician's negligence was also shown to be a substantial factor in causing or contributing to the extent or severity of her resulting injury. For this reason, an instruction on the law of concurring cause was necessary to insure that the jury understood that the defendant could be held liable even though another operative cause was present.
The most compelling reason for giving the concurring cause instruction in this case derives from the trial court's ruling denying the requested instruction that Dr. Goldsmith was liable for the negligence of his agent, Dr. Soud. As stated previously, evidence was presented at trial that Dr. Soud was also negligent in failing to correctly diagnose the seriousness of the child's medical condition and properly treat it, and the plaintiff's theory was that both the negligence of Dr. Goldsmith on August 12 and that of Dr. Soud on August 14 with respect to Taletha's ongoing condition resulted in the peritonitis due to the perforated appendix. When the trial court declined to permit any issue of Dr. Soud's negligence to go to the jury under the pleadings, that doctor's negligence immediately became, in the legal sense, that of a third party which operated in combination with the negligence of Dr. Goldsmith. Even the dissent will agree that the concurring cause instruction is intended to be given where the negligence of a third party concurs with the negligence of the defendant in causing an injury.
The dissent recognizes that the evidence adduced at trial "allowed defendant Goldschmidt to point to the `empty chair' and say the fault, if any, was that of Dr. Soud." (Infra, at p. 514.) The evidence of Dr. Soud's negligence cannot be completely separated from the alleged negligence of Dr. Goldsmith so as to leave Dr. Soud the sole negligent actor on this record. The negligence of Dr. Soud as contended by plaintiff cannot be treated as an independent intervening cause rather than a concurring cause for the reason that it is undisputed on this record that Dr. Soud was covering for Dr. Goldsmith and was expected to provide continuing diagnosis and treatment to Taletha as needed upon call.
When a requested instruction accurately states the applicable law, the facts support giving the instruction, and the instruction is necessary to allow the jury to properly resolve all of the issues in the case, failure to give such instruction constitutes reversible error. E.g., Miller v. Court, 510 So.2d 926; Tilley v. Broward Hospital District, 458 So.2d 817. Here, the Holmans presented evidence in support of their allegations that the physician's negligence, in combination with Taletha's preexisting appendicitis, caused the severity of her injuries. The court's failure to give this instruction, in the absence of another instruction adequately addressing concurrent causes, was error requiring a new trial.
III.
Appellants' third point challenges the court's failure to instruct the jury to determine whether Dr. Goldschmidt was negligent in "evaluating," rather than "diagnosing," Taletha's condition. They state that they presented no evidence that Dr. Goldschmidt was required to make a "diagnosis" of appendicitis; rather, they presented evidence showing that Dr. Goldschmidt should have recognized the presence of a surgical condition. Appellants assert that use of the word "diagnose" instead of "evaluate" in the requested instruction stripped them of their theory of the case and was tantamount to a directed verdict. We find no abuse of discretion in the court's refusal to give the instruction requested by appellants. Although the jury instruction the court selected held appellants to a more burdensome degree of proof in establishing negligence on the part of Dr. Goldschmidt, it was consistent with appellants' charge against appellee in the complaint, the issue presented in the pretrial stipulation, and the testimony elicited from witnesses of both parties regarding Dr. Goldschmidt's duty to diagnose Taletha's medical condition. Thus, we affirm as to appellants' third point on appeal.
IV.
Finally, appellants challenge as erroneous the trial court's ruling that confined the testimony of Dr. Garoni, Taletha's surgeon, to prognosis and damages. The record reflects no objections from appellants' counsel as to any such restrictions and no attempt by appellants' counsel to proffer any testimony of Dr. Garoni that might have been outside the court's limitation. The law is clear that a litigant may not fail to voice objections at trial and then raise them, claiming prejudice, for the first time on appeal. Allstate v. Gillespie, 455 So.2d 617 (Fla. 2d DCA 1984). Unless the error complained of is brought to the attention of the trial court, ordinarily it is not preserved for appellate court review. G.W.B. v. State, 340 So.2d 969 (Fla. 1st DCA 1976), cert. denied, 348 So.2d 948 (Fla. 1977). When objections to an intended area of inquiry are made and sustained, the reviewing court cannot find the rulings error unless the proposed testimony is proffered by the offering party, which was not done in this case. Atlantic Distributors, Inc. v. Alson Manufacturing Co. 141 So.2d 305 (Fla. 3d DCA 1962). Because appellants failed to properly preserve this issue for review, we affirm the fourth point on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED for a new trial.
SHIVERS, C.J., concurs.
THOMPSON, J., concurs and dissents with opinion.
I concur with the majority in finding the trial court did not err in instructing the jury that the issue was whether Dr. Goldschmidt was negligent in diagnosing the medical symptoms of Jerri Taletha Holman and that the trial court did not err in confining the testimony of Dr. Garoni to damages and prognosis. I dissent, however, from the majority's finding that the trial court erred on the remaining two issues and from their remand for a new trial. I would also affirm the trial court on these issues.
The appellants contend, and the majority agrees, that the trial court erred in not permitting the jury to consider whether Dr. Goldschmidt was responsible for any malpractice of Dr. Soud in providing health care services on August 14 to Taletha.
The majority states that, contrary to the trial court's ruling, the allegations contained in paragraphs 7, 14, and 15 of the complaint were sufficient to allow the appellants to raise at the instruction conference, after both parties had rested, the issue of whether Dr. Goldschmidt was vicariously liable for Dr. Soud's August 14 actions or inactions regarding the minor plaintiff. Paragraphs 7, 14 and 15 fail to mention Dr. Soud or any negligence on his part, and merely provide as follows:
7. On August 14, 1983, Sandra Gail Holman called the office of Mark N. Goldschmidt, M.D. from her home and related that her child, Jerri Taletha Holman, had the same symptoms except she was definitely worse and there was no urination or bowel movement. There was no indication given to Sandra Gail Holman that her child was in need of further medical treatment.
14. Notwithstanding said agreement and undertaking, Mark N. Goldschmidt, M.D. rendered medical care and treatment to the minor plaintiff in a manner described in the previous paragraphs which is a departure from the accepted and reasonable standards of medical care and treatment for physicians in such cases.
15. Jerri Taletha Holman received negligent care and treatment consisting of a failure by Mark N. Goldschmidt, J.D. to diagnosis [sic] her symptoms as appendicitus [sic] and failing to alert Sandra Holman about the need of additional medical care.
(Emphasis added.) There is nothing in the above-quoted allegations that give the defendant even a hint that the plaintiffs were suing him for the negligence of his alleged agent Dr. Soud.
The only allegation of negligence was that Dr. Goldschmidt rendered medical care and treatment to the minor plaintiff that was a departure from the accepted and reasonable standards of medical care and treatment for physicians in such cases. The negligent care and treatment alleged consisted of the failure of Dr. Goldschmidt to diagnose Taletha's symptoms as appendicitis and his failure to alert her mother about the need for additional medical care. The only person who ever examined and diagnosed the minor plaintiff was Dr. Goldschmidt. Dr. Soud never examined or made a diagnosis of the minor plaintiff's condition and I cannot conceive how the quoted paragraphs could be construed to place anyone on notice that the plaintiffs were claiming Dr. Goldschmidt was vicariously liable for some different negligence committed by another person. Even if the majority is of the opinion that the allegations were sufficient to allow the appellants to raise the issue, the trial judge ruled that they were not, and his decision should not be reversed except upon a showing of an abuse of his judicial discretion. An appellate court should not substitute its judgment for that of the trial judge under the circumstances of the instant case.
The plaintiffs' requested instruction, which the trial judge allegedly erred in failing to give, is as follows:
I hereby instruct you that the defendant, Mark N. Goldschmidt, M.D., is responsible for any negligence of his agent, Dr. Gary Soud, on August 14, 1983, in providing health care services for Taletha Holman.
The trial judge rejected the requested instruction saying that not only did the plaintiff fail to allege or plead that Dr. Soud was the agent of Dr. Goldschmidt or that any other relationship existed between them, but further that there was no evidence adduced that Dr. Soud was the agent of Dr. Goldschmidt. As found by the trial court, there is not one iota of evidence in the record to show Dr. Soud was the agent, servant or employee of Dr. Goldschmidt or that any other relationship existed between the parties that would render Dr. Goldschmidt vicariously liable for the negligence, if any, of Dr. Soud. The trial judge would have committed reversible error if he had given the instruction and he correctly rejected it.
The complaint was filed August 9, 1985. Almost two years later, in July of 1987, after substantial discovery, the parties entered into a pretrial stipulation in which the parties stipulated as to the nature of the action as follows:
The plaintiffs contend the medical care and attention provided did not meet the accepted and reasonable standard of medical care and treatment for physicians in such cases. As a consequence of this alleged negligence the Holmans contend there was a delay in the diagnosis of appendicitis.
They further stipulated to the following issue of fact:
Whether or not Dr. Goldschmidt was negligent in the medical care which he provided to Taletha Holman by deviating from the accepted standard of medical care and treatment for physicians in such cases. If negligent, what damages were proximately caused by the negligence.
Under the section on amended pleadings they stipulated "none." Again, there is no mention of any negligence by Dr. Soud and no mention of any issue as to any relationship between Dr. Soud and Dr. Goldschmidt which would render Dr. Goldschmidt liable for the acts of Dr. Soud. There was also no amended pleading or motion to amend the pleadings to add Dr. Soud as a party, or to allege any negligence on his part, and to allege Dr. Goldschmidt was liable for that negligence. The pretrial conference was held July 1, 1987, 12 days prior to the trial. Substantial discovery had been conducted prior to the pretrial including the taking of the depositions of Dr. Soud and Dr. Goldschmidt, and if the plaintiffs intended to change their theory of liability, they should have sought leave to amend their pleadings either before, or at least at, the pretrial conference in order that the defendant could amend his pleadings and prepare to defend his liability for the different negligent acts of another person. Our rules of civil procedure are designed to prevent lawyers from playing "gotcha" games in the trial of cases. At no time subsequent to the pretrial and prior to trial did the plaintiffs seek to amend their complaint, and the case went to trial on the sole issue of the negligence of Dr. Goldschmidt in failing to diagnose the minor plaintiff's condition as appendicitis. It was only at the instruction conference after both sides had rested that the appellants sought an instruction that changed their theory of liability.
The only case the majority cites as authority for the proposition that the appellants were entitled to an instruction that Dr. Goldschmidt was responsible for any negligence of his agent, Dr. Soud on August 14, 1983, is a contract case, Maestrelli v. Arrigoni, Inc., 476 So.2d 756 (Fla. 5th DCA 1985). The majority admits that there is no Florida court decision (and apparently there is none in the United States) that has held that the agency of one acting for a principal must be explicitly pleaded in a tort case. But the majority states it cannot perceive any reason or rationale for applying a different rule. Maestrelli, the case expressly relied upon, clearly distinguishes between agency in a contract case and in a tort case. In Maestrelli the court held:
The defendant argues on appeal that the plaintiff erred in not alleging in his complaint that the third person was acting as agent for the defendant and that he should not be found liable on a theory of liability not framed by the pleadings, citing Tamiami Trail Tours, Inc. v. Cotton, 463 So.2d 1126 (Fla. 1985). We affirm.
A principal's liability for the acts of his agent is not a "theory of liability", in the sense of a cause of action, such as debt or express or implied contract that must be pleaded to invoke the trial court's subject matter jurisdiction and to meet due process notice requirements. As a general rule, one suing upon a contract made for the defendant by an agent need not refer to the agency in the complaint but may merely allege the legal effect of the agent's action by averring that the contract was made by the principal himself.Id. at 757. (Emphasis added.) The Maestrelli court merely held that one suing on a contract made for the defendant by an agent need not specifically allege that the third party was acting as agent for the defendant and it distinguished its contract case from the tort case of Tamiami Trail Tours, Inc. v. Cotton, 463 So.2d 1126 (Fla. 1985). In Tamiami Trail Tours our Supreme Court clearly and specifically held that attempting to hold a principal vicariously liable for the tortious acts of an agent was a theory of liability saying:
Next petitioners argue that the jury returned a verdict showing that Crosby was not acting within the scope of his employment when he committed the tortious acts and, thus, that Tamiami cannot be assessed punitive damages absent a showing of wanton and willful conduct on its part. The record shows that the jury was instructed that Tamiami could be held liable for the tortious acts of Crosby under two theories: (1) vicarious liability as a principal for the actions of its agent acting within the course and scope of his employment, or (2) as a possessor of property who fails to control the actions of its servant on the property, even though the servant is acting outside the course and scope of his employment. The jury found Tamiami liable under the second theory. However, this issue was nowhere framed in the pleadings.
The complaint alleged Tamiami's liability only on the theories of conspiracy and agency. The conspiracy allegation was dismissed by the trial court upon defense motion after the close of plaintiff's case-in-chief. The defense was first apprised of the new theory of liability under which plaintiff sought damages from Tamiami at the charge conference after all the evidence had been entered.
The defense attorney repeatedly objected to both the charge and the special interrogatory on the verdict which allowed finding Tamiami liable for Crosby's actions outside the scope of his employment. No motion was ever made to conform the pleadings to the evidence, nor were the pleadings ever amended to include this theory. In short, Tamiami was sandbagged. It proceeded to trial on notice that it had to defend against charges of tortious interference with a business relationship for actions attributable to it on theories of conspiracy or agency. It won verdicts absolving it of liability on both theories. It was found liable on a theory it never had an opportunity to rebut at trial. While the theory itself is the law of the state, the procedural requirements of due process will not allow it to be raised in this manner.Id. at 1128. (Emphasis added.) Except for the trial court's ruling, Tamiami Trail Tours, Inc. is almost factually identical to the instant case in that the first time the defendant was apprised of the new theory of liability under which the plaintiffs sought damages was at the charge conference after all evidence had been entered. However, in Tamiami the trial court agreed to give the plaintiffs' requested charge on their new theory of liability. The supreme court held that giving the instruction was erroneous and vacated the judgments against Tamiami.
Another similar case is Designers Tile International v. Capitol C Corp., 499 So.2d 4 (Fla. 3d DCA 1986), wherein the court held that the plaintiff was improperly permitted to amend its complaint after the case had been fully tried on plaintiff's claim against defendants for negligent hiring of a third party. The plaintiff sought and was permitted by the trial judge to allege a new cause of action against the defendants for vicarious responsibility for the negligence of a third party, but the district court held that the allowing of the amendment changed the cause of action and constituted a material change which, under the facts of that case, greatly prejudiced the defendants.
In the more recent case of Arky, Freed, Stearns, Watson, Greer, Weaver Harris, P.A. v. Bowmar Instrument Corp., 537 So.2d 561 (Fla. 1988), the Supreme Court of Florida reversed a judgment entered in favor of Bowmar on its counterclaim. In that case Arky, Freed filed suit against Bowmar for attorney's fees for services rendered in a previous representation of Bowmar. Bowmar counterclaimed based on the alleged general negligence of Arky, Freed in their representation. Twelve days before the trial Bowmar disclosed its intention to specifically claim that Arky, Freed had negligently failed to assert and prove a particular defense. Arky, Freed immediately moved for a continuance or in the alternative to exclude all evidence relating to this belated claim. The motion for a continuance and the motion to exclude evidence of this specific claim were heard and denied by the trial court. On appeal the Third District found that the trial court erred in deciding that the general allegations stated a cause of action for Arky, Freed's specific failure to present the defense requested by Bowmar and that the trial court acted improperly in failing to grant a continuance since Arky, Freed was unable to prepare an adequate defense. The Third District rejected Arky, Freed's request to order the trial court to direct a verdict in its favor. Our supreme court reversed the Third District and remanded with instructions to order a verdict be directed in favor of Arky, Freed saying:
For the same policy reasons underlying Dober [ v. Worrell, 401 So.2d 1322 (Fla. 1981)], we conclude that litigants at the outset of a suit must be compelled to state their pleadings with sufficient particularity for a defense to be prepared. Our growing, complex society and diminishing resources mandate the requirement that litigants present all claims to the extent possible, at one time, and one time only. We disapprove the opinion of the Third District below to the extent it conflicts with this decision, and approve the opinions in Freshwater [ v. Vetter, 511 So.2d 1114 (Fla. 2d DCA 1987)], Designers Tile [ International Corp. v. Capitol C Corp., 499 So.2d 4 (Fla. 3d DCA 1986) review denied, 508 So.2d 13 (Fla. 1987)], Dean Co. [ v. U.S. Home Corp. Inc., 485 So.2d 438 (Fla. 2d DCA 1986)] and Citizens National [ Bank v. Youngblood, 296 So.2d 92 (Fla. 4th DCA 1974)]. On remand, the district court shall order that a verdict be directed in favor of Arky, Freed.Id. at 563. If it is error to amend or add a cause of action 12 days before trial it is necessarily error to permit amendment or addition of a new cause of action after all evidence is in. This is made absolutely clear by the dissent in Arky, Freed in which Justice Grimes states:
In each of the cases cited for conflict, there was no effort to amend the pleadings to state a new cause of action until after the plaintiff had presented its evidence. In each instance, the court properly held that to permit an amendment at this point would unfairly prejudice the defendant.
The instant case is much different. Twelve days before the commencement of the trial, Bowmar disclosed that it intended to prove at trial a theory which was arguably beyond the scope of the allegations of its counterclaim. Arky, Freed moved for a continuance on the ground that it did not have adequate time to prepare to defend against the new claim. The trial judge ruled that Bowmar's new claim was sufficiently embraced within the existing counterclaim and denied the motion for continuance.
I do not quarrel with the conclusion that the new claim went beyond the allegations of the counterclaim and that a continuance should have been granted. . ..Id. (Emphasis added.) Even the dissent in Arky, Freed agrees that the cases relied on by the majority, in which there was no effort to amend the pleadings to state a new cause of action until after the plaintiff had presented its evidence, properly held that to permit amendment would unfairly prejudice the defendant. Yet the majority opinion in the instant case would permit such amendment contrary to both the majority and dissenting opinions in Arky, Freed. Under the decision in Arky, Freed if the trial court had given the requested instruction it would have been error because it constituted the allowance of a prejudicial new cause of action at that late date, and on appeal the case would have been reversed and remanded with instructions to enter a verdict for Dr. Goldschmidt. It is difficult to conceive under these circumstances how it is reversible error to correctly refuse to give such an instruction. The trial judge properly refused to give the plaintiffs' requested instruction at the close of all evidence because the effect of it would be to allow a new and unpleaded cause of action to be asserted against the defendant based on alleged vicarious liability for the negligence of a third party.
The majority opinion also states that the parties tried the issue by express or implied consent. I do not concur in this finding, and the trial judge who heard all of the testimony did not accept the plaintiffs' assertion in this regard. As pointed out by this court in Bilow v. Benoit, 519 So.2d 1114 (Fla. 1st DCA 1988):
Rule 1.190(b) provides, however, that "when issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." But in order to rely on questions and answers not objected to during trial as evidencing the opposing party's implied consent to try unpled issues, it must be shown that such questions and answers are irrelevant to any pled issues; the failure to object cannot be taken as implied consent to try unpled issues when there is no occasion for such party to object that such evidence is irrelevant to the issues being tried. Wassil v. Gilmour, 465 So.2d 566 (Fla. 3d DCA 1985); Dysart v. Hunt, 383 So.2d 259 (Fla. 3d DCA), review denied, 392 So.2d 1373 (Fla. 1980). Rule 1.190(b) is not intended to permit a party to catch an opposing party by surprise and inject new, unpled issues in the case after the evidence is closed.Id. at 1116. (Emphasis added).
There is no evidence in the record that Dr. Soud was the agent of Dr. Goldschmidt or that any relationship existed between the two doctors that could be a basis to hold Dr. Goldschmidt liable for any negligence of Dr. Soud. Although Dr. Abrahamson may have been qualified to testify as to whether Dr. Soud deviated from the appropriate standard of care, he is not qualified to testify that Dr. Goldschmidt was responsible for Dr. Soud's alleged negligence. Since Dr. Soud was not a party to the lawsuit and there was no allegation he committed any acts of negligence for which Dr. Goldschmidt would be liable, there was no reason for Dr. Goldschmidt to object to the testimony concerning the negligence of Dr. Soud. This evidence merely allowed defendant Goldschmidt to point to the "empty chair" and say the fault, if any, was that of Dr. Soud. In Tucker v. Daugherty, 122 So.2d 230 (Fla. 2d DCA 1960), it was contended that by express or implied consent, the parties tried a different cause of action from the cause of action alleged in the complaint. In Tucker the plaintiff sued the vendors of a rock-crushing machine for personal injuries on the theory of negligence of the defendants. The plaintiff rested without proving the negligence alleged. The defendants moved for directed verdict but the trial court permitted the plaintiff to amend the pleadings to conform to the proof on the theory of volunteer or Good Samaritan cases. The court said:
The evidence regarding Dr. Abrahamson's qualifications and defense counsel's closing argument may have convinced the jury that Dr. Abrahamson was a professional medical witness rather than a practicing medical expert.
In this we think the trial court erred. It has been held in a negligence case that where the plaintiffs were not proceeding on the acts of negligence alleged in the complaint and the defendants could not discern this until the conclusion of the plaintiffs' case, it could not be said that the defendants had expressly or impliedly consented to a different ground for the action being proven. Edwards v. Young, Fla.App. 1958, 107 So.2d 244.Id. at 232. (Emphasis added.) In the instant case there was no way the defendant could tell until the close of all evidence and the request for jury instructions on the question of agency that the plaintiff was not proceeding on the basis of the act of negligence alleged in the complaint.
A trial judge's discretion to allow an amendment to state a new cause of action, which is precisely what the plaintiffs sought to do in this case by their requested instruction relating to the liability of Dr. Goldschmidt for the alleged negligent acts of Dr. Soud, is very limited. As stated by the court in Freshwater v. Vetter, 511 So.2d 1114 (Fla. 2d DCA 1987):
If evidence is introduced as to facts or issues not presented in the pleadings, the court, in its discretion, may allow amendments to conform to the evidence. Fla. R.Civ.P. 1.190. However, amending to state a new cause of action should not be allowed over objection. Triax, Inc. v. City of Treasure Island, 208 So.2d 669 (Fla. 2d DCA 1968); Tucker v. Daugherty, 122 So.2d 230 (Fla. 2d DCA), cert. denied, 125 So.2d 878 (Fla. 1960). We think the trial judge abused his discretion in this case by allowing Freshwater to amend his pleadings to state a cause of action against Vetter individually on a fraud theory after the close of Freshwater's case against Vetter which had been pled on basis of Vetter being the alter ego of Royal Cove.Id. at 1115. (Emphasis added.) A review of the foregoing cases makes it obvious why the majority cannot find a tort case to support its position. As applied to tort actions, its holding is an incorrect statement of the law unsupported by any case law. The numerous tort cases cited above are applicable to this case and mandate a contrary result.
In the majority opinion it is stated that the attorney for Dr. Goldschmidt knew the plaintiffs were contending Dr. Goldschmidt was vicariously liable for the negligence of Dr. Soud because Dr. Abrahamson had testified that Dr. Soud was negligent and that he was acting as the agent of Dr. Goldschmidt. In addition, Dr. Abrahamson's opinion that Dr. Soud was negligent was based on the minor plaintiff's mother's version of the phone call to Dr. Soud which was in complete conflict with Dr. Soud's version. Again, I can see no way that the testimony of a doctor as to a legal conclusion of the existence of an agency is competent substantial evidence to establish that conclusion. Dr. Abrahamson's testimony was given by deposition a week before the pretrial conference. If Dr. Goldschmidt's attorney should have known that the plaintiffs were contending that Dr. Soud was Goldschmidt's agent, then the complaint should have been amended at that time or at pretrial because the plaintiffs similarly must have known such was their contention. Notwithstanding this fact, the complaint was not amended at the time of the deposition, nor was it amended subsequently at the pretrial conference at which time the parties stipulated that the only issue was the negligence of Dr. Goldschmidt in failing to diagnose the appendicitis. No amendment or motion for leave to amend was made prior to trial. As in the Tamiami case, the defendant in the instant case would have been "sandbagged" if the trial judge had given the requested instruction that Dr. Soud was the agent of Dr. Goldschmidt and that Dr. Goldschmidt was liable for Dr. Soud's negligence.
This dissent is a rather lengthy detailed reply to a lengthy majority opinion. If it were not for the majority opinion reversing the trial court on the first issue, I would dispose of the appellants' contention in the same succinct one paragraph that the majority uses to affirm the trial judge on the third issue, in which the appellants contend that the trial judge erred in refusing their requested instruction that Dr. Goldschmidt's negligence was in "evaluating" rather than "diagnosing" the minor appellant's condition. The majority stated on that issue:
Appellants assert that the use of the word "diagnose" instead of "evaluate" in the requested instruction stripped them of their theory of the case and was tantamount to a directed verdict. We find no abuse of discretion in the court's refusal to give the instruction requested by the appellants. Although the jury instruction the court selected held appellants to a more burdensome degree of proof in establishing negligence on the part of Dr. Goldschmidt, it was consistent with appellants' charge against the appellee in the complaint, the issue presented in the pretrial stipulation, and the testimony elicited from the witnesses of both parties regarding Dr. Goldschmidt's duty to diagnose Taletha's medical condition.
(Emphasis added). This statement applies the correct standard of review by an appellate court and is a correct statement of the law applicable to the first issue as well as the third.
The majority also finds that the trial court erred in denying the plaintiff's request that the jury be charged with Standard Jury Instruction 5.1(b) on concurrent cause. I disagree. The failure to diagnose Taletha's symptoms as appendicitis and the fact she had appendicitis is not a concurrent cause of her injury and damage, it is the legal cause of her injury and damage. The charge on concurrent cause was not proper under the evidence adduced in this case. The note on use of Charge 5.1(b) provides as follows:
Charge 5.1 b. (Concurring cause) to be given when the court considers it necessary, does not set forth any additional standard for the jury to consider in determining whether negligence was a legal cause of damage but only negates the idea that the defendant is excused from the consequences of his negligence by reason of some other cause concurring in time and contributing to the same damage.
(Emphasis added). Instruction 5.1(b) was never intended to be used under the circumstances presented by the instant case. This is made clear in the following excerpt from the charge conference by the trial judge who is and has been for a number of years a member of the Supreme Court Committee for Standard Jury Instructions (Civil).
THE COURT: 5.1(b), defendants want to be heard on that?
MR. HOWELL: Which one is that, Judge?
THE COURT: This is concurring cause.
MR. HOWELL: Yeah. I don't think there's any evidence of any concurring cause or anything else in this case.
THE COURT: Well, let me tell you the thing that concerns me about 5.1(b), there are several cases out now that say that 5.1(b) should be given when requested when you have a negligence, comparative negligence situation between the plaintiff and the defendant, and I'm sure you all are going to argue in your closing arguments it was the parent's negligence for not bringing the child in as soon as they should have.
MR. HOWELL: Well, we haven't raised comparative negligence and the defense is not an issue.
THE COURT: I understand.
MR. HOWELL: I don't think it's a concurring cause. It's no negligence. I mean, we did what we had to do, then you have to rely on the parents to do what they are supposed to do. That's the whole tenor of the case.
MR. EDWARDS: The testimony, even from the plaintiff's experts, is the doctor has a right to rely on information given to [sic] the parents, and the question here is whether or not the doctor was negligent based upon the information given so that it's not being used in an — in the manner in which the cases address.
MR. HOWELL: Plus he's only been charged for negligence for that August the 12th visit. Anything that happened after that —
THE COURT: Let me tell you candidly what concerns me about this charge. The charge, when it was drafted, was intended only to apply in concurring cause situations.
Several courts in the last year have held it's error in situations where we never believed it was intended to be used not to give the charge when it was requested.
Now, I agree with you, I think it's — there's — I don't think it belongs in this case, but I don't think it can hurt you to give it, and I don't want to create reversible error if I can avoid it.
If you want to not give it and take that chance, I'll do it, but I'm just concerned that they are going to go off on a tangent if this goes off on appeal, if you win, if it goes up on appeal.
MR. HOWELL: Where is the charge?
THE COURT: Here. Here it is.
MR. HOWELL: There isn't any evidence of concurring negligence here. Even the parents, if they are negligent at all, it came afterward.
THE COURT: You want me not to give it?
MR. HOWELL: I don't think it's appropriate in this case.
THE COURT: Do you want me not to give it?
MR. HOWELL: Yes.
THE COURT: I'm going to deny it. I agree with you. I don't think it's appropriate. I'm just warning you.
MR. HOWELL: All right. We'll take that chance.
THE COURT: All right.
MR. LOFTIN: Your Honor, they are certainly going to argue, I'm sure, that to the jury that the parents were at fault here, even though they have not pled any contributory negligence or comparative negligence or anything.
THE COURT: But, see, that doesn't make it a concurring cause unless the defendant is also at fault, and it has to operate at the same time as the defendants' negligence.
And if the only possible negligence of the defendant occurred on August 12th and the defendant — and the plaintiffs, the parent's alleged failure to act reasonably occurred subsequent to August 12th, that's not a concurring cause.
It may be an intervening cause, but it's not a concurring cause, and I don't think it's appropriate. I'm going to reject it.
MR. HOWELL: Okay.
Assuming arguendo that the concurring cause instruction should have been given, the failure to give that instruction under the facts and circumstances of this case was harmless and does not constitute reversible error. One of only two cases cited by the majority that involved a malpractice action for misdiagnosis as in the instant case is Wilson v. Boca Raton Community Hospital, Inc., 511 So.2d 313 (Fla. 4th DCA), review denied 519 So.2d 988 (Fla. 1987). In Wilson the court affirmed the trial court's refusal to give Standard Jury Instruction 5.1(b) on concurring cause. The court held that although there was clearly concurring negligence in that case the failure to give the concurring negligence instruction was not reversible error saying:
Clearly, what was before the jury was the questions of whether the treating physician's misdiagnosis was brought about because of the patient's insistence he did not ingest parquet and whether death was certain to occur in any event by the time the patient showed up in the emergency room. Thus, while the failure to give a concurring cause instruction may have been error, it was not reversible because we see no "reasonable possibility that the jury could have been misled by the failure to give the instruction."Id. at 314. (Emphasis added.) Likewise, there is no possibility that the jury could have been confused or misled by the failure to give the concurring negligence instruction in the instant case. As pointed out by the committee note, instruction 5.1(b) "only negates the idea that the defendant is excused from the consequences of his negligence by reason of some other cause concurring in time and contributing to the same damage." There is no way the failure to give a concurring negligence instruction in this cause could have confused or misled the jury. The only negligence alleged was the failure of the defendant doctor to diagnose appendicitis and the jury could not possibly believe that the fact that the minor plaintiff had appendicitis negated or excused the doctor's liability for failure to diagnose the appendicitis.
The majority also states that the concurring cause instruction is appropriate when the plaintiff is charged with comparative negligence. Admittedly there are some cases cited by the majority which support this statement. However, even if these cases are correct they are totally inapplicable to the instant case. There were no allegations of comparative negligence in the pleadings in this case. Comparative negligence was not an issue set forth in the pretrial order. There was no proof of comparative negligence by the defendant and no argument was made that the plaintiffs were guilty of any comparative negligence. The issue of comparative negligence was never raised in this case, and the cases relied upon by the majority involving comparative negligence are therefore inapplicable. Higgins v. Johnson, 434 So.2d 976 (Fla. 2d DCA 1983), the only other misdiagnosis malpractice case cited by the majority, was a comparative negligence case and for that reason is inapplicable. In addition, Higgins also involved an intervening cause and the court held that the failure to give Instruction 5.1(c) on intervening cause was error.
Comparative negligence by a plaintiff in no way negates the defendant's liability, it merely reduces the damages that can be recovered by a plaintiff. For that reason comparative negligence is not concurring negligence under the concurring negligence instruction and the notes on use for that instruction.
Note three in the majority opinion implies that a jury instruction on nondelegable duties would be applicable on a retrial of this case if requested. In my opinion the court should not give gratuitous, unsolicited legal advice on an issue not before it, particularly when, at least in my opinion, it is erroneous. The Irving case cited as authority for the footnote does not bear any factual resemblance to the instant case. Instead it involved the liability of a hospital for the acts of an independent contractor physician in its emergency room. The court held that when a hospital clothes a person with apparent authority to treat incoming patients the hospital may not escape its contractual liability by delegating performance under a contract to an independent contractor. It is well-established law that under those circumstances the hospital has a nondelegable duty to the patient. Public Health Trust of Dade County v. Valcin, 507 So.2d 596 (Fla. 1987); Arango v. Reyka, 507 So.2d 1211 (Fla. 4th DCA 1987).
The able trial judge fairly presided over a complicated three day trial and correctly decided the issues of law presented to him. A jury verdict supported by competent substantial evidence was rendered and the judgment on that verdict was approved by the trial judge on motion for new trial. I would affirm on all issues.