Castillo v. Bush

902 So. 2d 317, 2005 Fla. App. LEXIS 8071, 2005 WL 1250215
CourtDistrict Court of Appeal of Florida
DecidedMay 27, 2005
DocketNo. 5D04-609
StatusPublished
Cited by3 cases

This text of 902 So. 2d 317 (Castillo v. Bush) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Castillo v. Bush, 902 So. 2d 317, 2005 Fla. App. LEXIS 8071, 2005 WL 1250215 (Fla. Ct. App. 2005).

Opinion

PALMER, J.

Carmen Castillo appeals the final judgment entered by the trial court after a jury rendered a verdict against her on her claim of medical malpractice. We affirm.

Carmen Castillo, in her capacity as the personal representative of her husband Eddie’s estate, filed suit against Dr. Jeffrey Bush, a radiologist, alleging medical malpractice, claiming that Dr. Bush’s improper interpretation of a CT scan led to Mr. Castillo’s death. Castillo subsequently amended her complaint to assert a cause of action for vicarious liability against the radiology group which employed Bush, alleging that Dr. Bush’s partner, Dr. Hines, had also been negligent in reading Castillo’s CT scan.

The evidence adduced at trial demonstrated that Mr. Castillo visited a hospital emergency room on a Sunday morning complaining of severe abdominal pain. The emergency room physician examined Mr. Castillo and ordered a series of tests, including a CT scan. Dr. Bush read the CT scan and reported “no acute abnormalities”. The emergency room physician prescribed pain medication and sent Mr.' Castillo home with instructions that if his condition were to worsen, such as if he began vomiting, then he should return to the hospital. After arriving home, Mr. Castillo’s condition did worsen in terms of pain, and he began vomiting. However, instead of returning to the hospital, he contacted his primary care physician. By Tuesday morning, Mr. Castillo was in severe distress and called for an ambulance to take him to the hospital. Soon thereafter, he suffered a heart attack and died, allegedly due to complications from his abdominal condition.

In asserting a claim of medical negligence, Mrs. Castillo claimed that Dr. Bush’s improper reading of the CT scan lead to her husband’s death. She also alleged that Dr. Bush was vicariously liable for the negligence of Dr. Hines, who reviewed the CT scan on the day following Castillo’s visit - to the hospital. In response, Dr. Bush primarily alleged that Mr. Castillo’s refusal to comply with the emergency room physician’s instructions to return to the hospital if he began vomiting led to his death. In the alternative, Dr. Bush argued that several other physicians, none of whom were party defendants in the instant lawsuit (including the emergency room physician and the Castillos’ primary care physician) were responsible for causing Mr. Castillo’s death.

Following a six-day trial, the jury returned a verdict finding that there was no negligence on the part of Dr. Bush or Dr. Hines which was a legal cause of Mr. Castillo’s death. The trial court denied Castillo’s motion for new trial and entered a final judgment on the jury’s verdict. This appeal and cross-appeal timely followed.

Castillo argues that this case involves multiple instances of improper conduct on the part of defense counsel which precluded her from receiving a fair trial and, therefore, the trial court erred in denying her post-trial request for new .trial.

A motion for new trial is addressed to the sound discretion of the trial court and a ruling thereon will not be disturbed absent a clear showing of abuse of discretion. Cloud v. Fallis, 110 So.2d 669 (Fla.1959). If reasonable men could differ as to the propriety of the action [320]*320taken by the trial court, then there is no abuse of discretion. Ford Motor Co. v. Kikis, 401 So.2d 1341 (Fla.1981).

In asserting her claim for appellate relief, Castillo first argues that the trial court should have granted her a new trial because she was unduly prejudiced by comments made by defense counsel during his closing argument. More specifically, Castillo contends that defense counsel made two improper “trust me” statements which mandate the grant of a new trial. The record reveals that when the first “trust me” statement was made, no objection was raised to the statement. When the second “trust me” statement was made, counsel for Castillo objected, defense counsel apologized, and the court sustained the objection. No motion to strike or motion for mistrial was made.

In her post-trial motion for new trial, Castillo argued that defense counsel’s “trust me” comments constituted reversible error. The trial court rejected this argument, stating: “[T]he Court finds that there was no reasonable likelihood in the overall context that defense counsel’s isolated ‘trust me’ statement, which was sustained on objection, deprived Plaintiff of a fair trial.”

In reviewing this claim, we note that, “[generally, a mistrial or new trial should be granted only when counsel’s [closing] arguments are so inflammatory and prejudicial that they deny the opposing party a fair trial.” Maksad v. Kaskel, 832 So.2d 788 (Fla. 4th DCA 2002)(eiting to Jeep Corp. v. Walker, 528 So.2d 1203 1204 (Fla. 4th DCA 1988)). On the face of the instant record, there is no indication that the trial court abused its discretion in denying Castillo’s request for a new trial based upon the “trust me” comments.

Castillo next argues that the trial court should have granted her a new trial because, during his closing argument, defense counsel violated the terms of the parties’ pre-trial stipulation.

The defendants filed a pre-trial motion in limine regarding “hypothetical questions.” In the motion, the defendants requested that the trial court enter an order preventing Castillo from questioning the emergency room physician, Dr. Newcomer, as to “what he would have done had he received information other than the information provided to him by Dr. Bush”. After much discussion, the parties agreed that they would not question Dr. Newcomer as to whether he would have done anything different had he received different information from Dr. Bush concerning Mr. Castillo’s CT scan.

Thereafter, during his closing argument, when discussing Castillo’s theory of the case, defense counsel made the following statement:

Is [Castillo’s theory of the case] that had Dr. Bush reported the information found on Dr. Hines’ variance report the next morning, the information that has the handwritten question mark, small bowel mass, or inflammation versus adhesion, had Dr. Bush put that on his urgent fax typed report that somehow the outcome would have been different, that somehow that would set the wheels in motion differently? Well, Dr. Newcomer didn’t testify to that.

Counsel for Castillo immediately objected and moved for mistrial, arguing that defense counsel’s statements were in violation of the parties’ pre-trial stipulation. The court sustained the objection and ordered the jury to disregard the comment. Defense counsel continued:

There was no evidence from any expert in this case, whether it be Dr. Brown, whether it be Dr. Dineen, that anybody in the emergency room — Dr. Newcom[321]*321er — would have done something different had different information been provided to him.

Counsel for Castillo objected again, but the objection was overruled.

In her post-trial motion, Castillo moved for a new trial, arguing that it was reversible error for defense counsel to violate the terms of the parties’ pre-trial stipulation. The trial court rejected this argument, ruling:

After reviewing the closing argument in context, the Court agrees with the Defendants that the comments were not improper or in violation of the stipulation or in limine ruling.

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Cite This Page — Counsel Stack

Bluebook (online)
902 So. 2d 317, 2005 Fla. App. LEXIS 8071, 2005 WL 1250215, Counsel Stack Legal Research, https://law.counselstack.com/opinion/castillo-v-bush-fladistctapp-2005.