Dungan v. Ford

632 So. 2d 159, 1994 WL 37028
CourtDistrict Court of Appeal of Florida
DecidedFebruary 11, 1994
Docket92-564
StatusPublished
Cited by24 cases

This text of 632 So. 2d 159 (Dungan v. Ford) 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
Dungan v. Ford, 632 So. 2d 159, 1994 WL 37028 (Fla. Ct. App. 1994).

Opinion

632 So.2d 159 (1994)

Mary Jo DUNGAN and Allen J. Dungan, Appellants,
v.
Travis Griffin FORD and Miller Transporters, Inc., Appellees.

No. 92-564.

District Court of Appeal of Florida, First District.

February 11, 1994.
Rehearing Denied March 17, 1994.

*160 James F. McKenzie, McKenzie & Soloway, P.A., Pensacola, for appellants.

James A. Edwards, Roth, Edwards & Smith, P.A., Orlando, for appellees.

SMITH, Judge.

Mary Jo and Allen Dungan, plaintiffs below, appeal from an adverse judgment rendered against them following a jury verdict denying recovery in their negligence action for damages incurred in an automobile accident. We agree that reversible error occurred in the admission of evidence and in denial of a special jury instruction requested by appellants. Accordingly, we reverse and remand for a new trial.

On April 26, 1986, Mary Jo and Allen Dungan, their daughter Crystal, a family friend, and Allen's mother, Dartha Dungan, were riding in a van along a highway in Milton, Florida. Mary Jo was driving when the van was struck from the side by a semitractor trailer owned by appellee Miller Transporters, Inc., which was then being driven by appellee, Travis Ford. Crystal and Dartha Dungan were taken for medical treatment for their injuries immediately following the accident. Mary Jo required no immediate medical treatment; however, she later developed pain and disabilities which she attributed to the accident, and received extensive medical treatment, including surgery.

Appellants filed their complaint seeking damages for injuries, disability and disfigurement suffered by Mary Jo, and for medical expenses and loss of income. Appellant Allen Dungan sought damages for loss of consortium. Dartha Dungan, Allen's mother, joined as a plaintiff in the complaint, seeking damages for her personal injuries and medical expenses. At trial, the jury returned a verdict of $75,000 in favor of Dartha Dungan, but denied recovery to Mary Jo and Allen Dungan based upon the jury's finding that there was no negligence on the part of the defendants which was a legal cause of damage to Mary Jo and Allen. Mary Jo and Allen moved for a new trial, arguing that the jury's verdict with respect to them was against the manifest weight of the evidence; that the jury verdict was inconsistent with the verdict in favor of Dartha Dungan, and that the verdict was the result of the trial court's error in admitting testimony regarding the inappropriate medical treatment received by Mary Jo Dungan. In their motion for a new trial, appellants also pointed out that negligence on the part of the defendant driver, Ford, was admitted, and that the defendants' own medical expert was of the opinion that Mary Jo was injured in the accident, and that she was permanently impaired. The motion for a new trial was denied.

On appeal, appellants assert as error the trial court's denial of their motion for a new trial. They further urge as error the admission, over objection, of testimony by the defendants' medical expert, Dr. Rutledge, that a substantial cause of Mary Jo's pain and physical impairment was the inappropriate treatment provided by her treating physician, Dr. Flynn, particularly the surgical procedure known as a percutaneous diskectomy, and disc fusion surgery. Appellants further urge that the court erred in refusing to grant appellants' motion for mistrial based upon the admission of prejudicial testimony given by Dr. Rutledge after the trial court sustained an objection to questions regarding his opinion as to the inappropriateness of Dr. Flynn's treatment. Finally, appellants urge that the trial court reversibly erred in refusing their request for a special jury instruction advising the jury that the original tortfeasor is liable for damages caused by subsequent improper medical treatment which aggravates or increases the original injury.

We first address the issue of the improperly admitted medical evidence. Dr. Rutledge, the defense witness, testified that in his opinion the accident of April 20, 1986 aggravated Mary Jo's preexisting condition and caused her pain to begin.[1] Following that statement, he was asked to elaborate upon what type of treatment he would have recommended *161 had he seen Mary Jo initially. The doctor related that he would have instructed her in exercises, and may well have ordered some physical therapy. She would also have been counseled, and probably would have been given medication of several different varieties. Then she would have been monitored with the expectation of slow improvement. He stated that it is very common for patients with preexisting degenerative disc disease to have symptoms that last for months or even longer after an episode of the type she experienced, and he would try to let the patient know what was expected, and that the condition would eventually get better and subside. However, if the patient failed to respond to that course of care over a reasonable period of time, maybe two or three months, then further studies might be ordered, such as the studies Dr. Flynn ordered.

Rutledge was then asked whether, based upon his diagnosis, he had formed an opinion as to whether it was reasonable and necessary in January of 1987 to do a percutaneous diskectomy. Upon objection by appellants' counsel, there followed a bench conference in which the court and counsel discussed, among other things, this court's recent ruling in Davidson v. Gaillard, 584 So.2d 71 (Fla. 1st DCA), rev. denied, 591 So.2d 181 (Fla. 1991), regarding the rule that an original tortfeasor remains liable for subsequent medical malpractice of a treating physician, so long as the treatment is related to the conditions caused by the original wrong. Appellees' counsel argued to the court that appellees had no intention of contending that Mary Jo was injured as a result of malpractice by Dr. Flynn, but that appellees were entitled to provide evidence from which the jury would be able to assess what was reasonable and necessary treatment, so that the jury could decide what should be paid, or not paid, to Mrs. Dungan, as covered by the standard jury instructions concerning the award of reasonable and necessary medical costs and treatment. The trial judge responded, we think correctly, that although experts are permitted to disagree with opinions reached by other experts, a lay person is entitled to reasonably rely on the judgment of a licensed expert and should not be required to do some independent investigation beyond that. After further discussion, in which appellees' counsel attempted to distinguish the present situation from the usual rule, in that Mary Jo was referred to Dr. Flynn by her attorney, the court ruled that it would be proper to ask Dr. Rutledge whether he agreed with certain conclusions of Dr. Flynn so far as his diagnosis was concerned, but it would be impermissible to inquire of Dr. Rutledge whether or not in his opinion the surgery was reasonable or necessary. Appellees' counsel was then permitted to proffer the testimony of Dr. Rutledge that, in his opinion, both the percutaneous diskectomy in January 1987 and the two level fusion operation in January 1989 were not reasonable and necessary. Following the proffer, the trial court ruled that counsel would be permitted to ask Dr. Rutledge whether or not his opinions differed from Dr. Flynn's, but that counsel would not be permitted "to launch a direct broadside attack into what Dr. Flynn did."[2]

After the proffer and the trial court's ruling, direct examination of Dr. Rutledge continued. He was immediately asked to assume that Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
632 So. 2d 159, 1994 WL 37028, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dungan-v-ford-fladistctapp-1994.