Munoz Ex Rel. Munoz v. South Miami Hosp., Inc.

764 So. 2d 854, 2000 WL 1114315
CourtDistrict Court of Appeal of Florida
DecidedAugust 9, 2000
Docket3D98-1661
StatusPublished
Cited by21 cases

This text of 764 So. 2d 854 (Munoz Ex Rel. Munoz v. South Miami Hosp., Inc.) 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
Munoz Ex Rel. Munoz v. South Miami Hosp., Inc., 764 So. 2d 854, 2000 WL 1114315 (Fla. Ct. App. 2000).

Opinion

764 So.2d 854 (2000)

Gabriel MUNOZ, a minor, By and Through his parents and natural guardians, Marcos MUNOZ, Jr., and Ana M. Munoz, and Marcos Munoz, Jr., and Ana M. Munoz, individually, Appellants,
v.
SOUTH MIAMI HOSPITAL, INC., Richard L. Litt, M.D., Richard L. Litt, M.D., P.A., and Gonzalo De Quesada, M.D., Appellees.

No. 3D98-1661.

District Court of Appeal of Florida, Third District.

August 9, 2000.

*855 Ginsberg & Schwartz and Arnold Ginsberg, Miami; Sheldon J. Schlesinger, Ft. Lauderdale, for appellants.

Greenberg Traurig and Elliot H. Scherker, Miami; Michael S. Hacker, Miami; Tilghman & Vieth and Araly Herrera, Miami, for appellees.

Before SCHWARTZ, C.J., and JORGENSON and COPE, JJ.

ON MOTION FOR REHEARING

SCHWARTZ, Chief Judge.

Upon consideration of the motion for rehearing, which is otherwise denied, the majority opinion filed on April 19, 2000 is withdrawn and the following opinion is substituted in its place.

This is a medical malpractice action stemming from permanent kidney damage sustained by a newborn infant despite an adverse sonogram test which indicated the defect and expert evidence that prompt and efficient treatment, which was not appropriately rendered after the birth, would have corrected the condition. The child and his parents sued the obstetrician-gynecologist who treated the expectant mother and delivered the child, the hospital at which the child was delivered and stayed until he went home with the mother, an on-call physician who telephonically prescribed treatment for the infant during the hospital stay and the pediatrician who was primarily responsible for treating the child after delivery. While the case against the pediatrician, Dr. Ugalde, remains pending below, the trial judge entered summary judgment for the ob-gyn, the on-call physician, and the hospital. On this appeal we affirm as to the on-call physician, but reverse for trial as to the obstetrician and hospital.

I.

During her pregnancy, the mother, Ana Munoz, underwent a sonogram ordered by her obstetrician, Dr. Richard Litt. The test suggested that one of the fetus' kidneys might not be filtering properly. The maternal grandmother discussed the test results with Dr. Jose Ugalde, who had been the family pediatrician for many years. Dr. Ugalde advised that no action should be taken prior to birth.

Dr. Litt delivered Gabriel Munoz at South Miami Hospital. He recorded the questionable sonogram result in the chart of the child, for reference to the child's pediatrician for further studies after birth, but neither Dr. Litt nor any of the nurses or other hospital personnel who were well aware of them, personally informed Dr. Ugalde of the sonogram results.

Dr. Ugalde took over the child's care at the hospital. He saw the mother daily during her hospitalization and discussed the questioned kidney filtering with her and the maternal grandmother. He said he believed that based upon his examination, the child was fine and that he held this opinion despite his review of the nurses' and the progress notes in the hospital records.

While in the hospital the baby developed an elevated bilirubin count resulting in jaundice, and did not void normally—both of which may together, but not necessarily individually, be symptomatic of kidney dysfunction. The hospital contacted Dr. DeQuesada, a pediatrician who was on-call for Dr. Ugalde, by telephone concerning the baby, but told him only of the bilirubin-jaundice problem. Dr. DeQuesada ordered treatment and that condition returned to normal. Dr. Ugalde resumed *856 responsibility for the child's care soon thereafter but never undertook appropriate treatment for the infant's kidney condition. After discharge from the hospital, however, it was demonstrated that Gabriel suffers from severe damage to one kidney and probably almost equal damage to the other one which the plaintiff's expert testimony demonstrated could have been prevented had the child been properly examined and treated after delivery.

II.

1. Our affirmance of the summary judgment in favor of the on-call physician is based on the clear showing that Dr. DeQuesada acted entirely correctly on the basis of the limited information conveyed by the hospital personnel.[1]

2. The liability of Dr. Litt and the hospital, however, should not have been taken from the jury. As to these defendants, the record contains direct, competent expert opinions that both Dr. Litt and the hospital's nurses deviated from the applicable standard of professional care by failing themselves directly—in addition to merely placing the information in the hospital records—to inform Dr. Ugalde of the potentially (and actually) devastating results of the adverse sonogram. This alone is sufficient to preclude summary judgment, see generally Moore v. Morris, 475 So.2d 666 (Fla.1985), under principles concerning duties to warn which are applicable both generally, see Tampa Drug Co. v. Wait, 103 So.2d 603 (Fla.1958), and with respect to medical situations such as this one in particular. See Visingardi v. Tirone, 193 So.2d 601 (Fla.1966); Seley v. G.D. Searle & Co., 67 Ohio St.2d 192, 423 N.E.2d 831 (1981). Moreover, because both Dr. Litt and the nurses knew or should have known that Dr. Ugalde had not responded to the dangers presented by the sonogram results, the case invokes the rule that medical professionals must, under some circumstances, see to it that serious conditions which they know about be, in fact, remedied either by themselves or by someone else competent to do so. See Jackson v. Burton, 226 Ala. 483, 147 So. 414 (1933); Reynolds v. Dennison, 981 S.W.2d 641 (Mo.Ct.App.1998); Bateman v. Rosenberg, 525 S.W.2d 753 (Mo.Ct.App. 1975).[2]

The trial court based its contrary conclusions on the ground, and the appellees now claim, that none of this misconduct could have been the legal cause of the child's condition because Dr. Ugalde, whose job it was to treat it, had in fact been informed of the sonogram results by the child's parents and grandparents, and testified that being also told by the obstetrician or the hospital personnel would have made no difference. In several respects, this analysis is both factually and legally flawed.

In the first place, as the concurring opinion correctly points out, Dr. Ugalde's statements about what he would or would not have done in response to warnings which should have been but were never in fact given are themselves in internal conflict. Even if they were not, however, and while, contrary to our initial view, we do not believe that even speculative statements of this kind are inadmissible, cf. Drackett Products Co. v. Blue, 152 So.2d 463 (Fla.1963), they surely cannot be given conclusive effect. See Drackett, 152 So.2d at 463; Walker v. Florida Department of Business and Professional Regulation, 705 So.2d 652 (Fla. 5th DCA 1998); 29A Am.Jur.2d Evidence § 1445 (1994); Annot., Credibility of Witness Giving Uncontradicted *857 Testimony as Matter for Court or Jury, 62 A.L.R.2d 1191 (1958). Compare Ewing v. Sellinger, 758 So.2d 1196 (Fla. 4th DCA 2000)(considering effect of undisputed opinion of non-party physician as to his own conduct in hypothetical situation).

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Bluebook (online)
764 So. 2d 854, 2000 WL 1114315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/munoz-ex-rel-munoz-v-south-miami-hosp-inc-fladistctapp-2000.