Marrero v. Goldsmith

486 So. 2d 530, 11 Fla. L. Weekly 35
CourtSupreme Court of Florida
DecidedJanuary 23, 1986
Docket65400
StatusPublished
Cited by30 cases

This text of 486 So. 2d 530 (Marrero v. Goldsmith) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marrero v. Goldsmith, 486 So. 2d 530, 11 Fla. L. Weekly 35 (Fla. 1986).

Opinion

486 So.2d 530 (1986)

Pamela MARRERO, Petitioner,
v.
Malcolm G. GOLDSMITH, M.D., et al., Respondents.

No. 65400.

Supreme Court of Florida.

January 23, 1986.
Rehearings Denied May 5, 1986.

*531 Edward A. Perse, of Horton, Perse and Ginsberg, and Alldredge and Gray, Miami, for petitioner.

Robert M. Klein, of Stephens, Lynn, Chernay and Klein, Miami, for Malcolm G. Goldsmith, M.D.

John Edward Herndon, Jr., of Thornton and Herndon, P.A., Miami, for William Brewster, M.D.

Evan J. Langbein, of Evan J. Langbein, and Alan E. Greenfield, P.A., Miami, for Constantine Kitsos, M.D.

SHAW, Justice.

This medical malpractice action, Marrero v. Goldsmith, 448 So.2d 543 (Fla. 3d DCA 1984), is before us due to express and direct conflict with South Florida Hospital Corp. v. McCrea, 118 So.2d 25 (Fla. 1960). We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution.

Plaintiff underwent surgery with Dr. Brewster administering general anesthesia, Dr. Goldsmith performing a hemorrhoidectomy, followed by Dr. Kitsos performing an abdominal dermolipectomy and removing a cyst from her eyelid. Following surgery plaintiff complained of numbness, weakness and pain in her left arm, which was diagnosed as bracial plexapathy. She sued the three doctors and the hospital for damages. She produced expert medical testimony that this type of injury is one that ordinarily does not occur in the absence of negligence and that it was probably caused by incorrect arm positioning during surgery. The doctors testified that they knew of nothing unusual happening during the surgery. Plaintiff's requested jury instruction on res ipsa loquitur was denied by the trial court. The hospital settled before submission of the issue of its liability to the jury and the jury found no liability on the part of the doctors.

The district court affirmed, stating that res ipsa loquitur was inapplicable because the plaintiff presented expert testimony regarding the defendants' alleged negligence. It cited this Court's decision in Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So.2d 1339 (Fla. 1978), as precluding a res ipsa instruction unless direct proof of negligence is wanting.

Res ipsa loquitur is a Latin phrase that translates "the thing speaks for itself." Prosser and Keaton, Law of Torts § 39 (5th ed. 1984). It is a rule of evidence that permits, but does not compel, an inference of negligence under certain circumstances. "[T]he doctrine of res ipsa loquitur is merely a rule of evidence. Under it an inference may arise in aid of the proof." Yarbrough v. Ball U-Drive System, Inc., 48 So.2d 82, 83 (Fla. 1950). In Goodyear, a products liability case, we explained the doctrine as follows:

It provides an injured plaintiff with a common-sense inference of negligence where direct proof of negligence is wanting, provided certain elements consistent with negligent behavior are present. Essentially the injured plaintiff must establish that the instrumentality causing his or her injury was under the exclusive control of the defendant, and that the accident is one that would not, in the ordinary course of events, have occurred without negligence on the part of the one in control.

Goodyear, 358 So.2d at 1341-42, (footnotes omitted).

In finding res ipsa loquitur inapplicable, the Court in Goodyear relied on three factors: 1) there was sufficient direct evidence of negligence available to the extent that "the facts surrounding the incident were discoverable and provable"; 2) the occurrences of tire blowouts after the tires *532 had been driven 4,000 to 9,500 miles were not the type of accidents that "speak for themselves" unaided by plaintiffs' circumstantial evidence; and 3) the tire companies did not have exclusive control at the times of the plaintiffs' injuries.

In McCrea, we determined that there was no conflict in a decision of this Court with the proposition that "[a] plaintiff is not precluded from resorting to the doctrine of res ipsa loquitur merely because he introduces evidence of specific negligence attributable to the defendant." 118 So.2d at 28 (italics removed). On the contrary, we determined that it was harmonious with this Court's decisions in West Coast Hospital Association v. Webb, 52 So.2d 803 (Fla. 1951) and McKinney Supply Co. v. Orvitz, 96 So.2d 209 (Fla. 1957). 118 So.2d at 31.

If a case is a proper res ipsa case in other respects, the presence of some direct evidence of negligence should not deprive the plaintiff of the res ipsa inference. There comes a point, however, when a plaintiff can introduce enough direct evidence of negligence to dispel the need for the inference. According to Prosser:

Plaintiff is of course bound by his own evidence; but proof of some specific facts does not necessarily exclude inferences of others. When the plaintiff shows that the railway car in which he was a passenger was derailed, there is an inference that the defendant railroad has somehow been negligent. When the plaintiff goes further and shows that the derailment was caused by an open switch, the plaintiff destroys any inference of other causes; but the inference that the defendant has not used proper care in looking after its switches is not destroyed, but considerably strengthened. If the plaintiff goes further still and shows that the switch was left open by a drunken switchman on duty, there is nothing left to infer; and if the plaintiff shows that the switch was thrown by an escaped convict with a grudge against the railroad, the plaintiff has proven himself out of court. It is only in this sense that when the facts are known there is no inference, and res ipsa loquitur simply vanishes from the case. On the basis of reasoning such as this, it is quite generally agreed that the introduction of some evidence which tends to show specific acts of negligence on the part of the defendant, but which does not purport to furnish a full and complete explanation of the occurrence, does not destroy the inferences which are consistent with the evidence, and so does not deprive the plaintiff of the benefit of res ipsa loquitur.

Prosser and Keaton § 40 (footnotes omitted).

Since Goodyear we had occasion to decide City of New Smyrna Beach Utilities Commission v. McWhorter, 418 So.2d 261 (Fla. 1982). In McWhorter an accumulation of paper of unknown origin caused an obstruction in the city's sewer line, which in turn caused a blockage in the system and flooding of the plaintiff's house. We cited Goodyear and stated that the McWhorters could benefit from the doctrine of res ipsa loquitur only if they could show that: 1) direct evidence of the city's negligence was unavailable; 2) the line ordinarily would not have become obstructed and the sewage ordinarily would not have flooded their home absent negligence by the city; and 3) the main sewer line and all that entered it was under the exclusive control of the city. We found that the McWhorters failed to allege or prove any of these elements, thus precluding the giving of a res ipsa instruction. Neither Goodyear nor McWhorter stand for the proposition that by introducing "any direct evidence of negligence" the plaintiff thereby forfeits a res ipsa instruction if it is otherwise applicable. Use of the term "where direct proof of negligence is wanting" should be interpreted in light of Professor Prosser's vanishing inference. This interpretation does not require that there be a complete absence of direct proof.

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Bluebook (online)
486 So. 2d 530, 11 Fla. L. Weekly 35, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marrero-v-goldsmith-fla-1986.