Nazzaro v. Wolfe

District Court of Appeal of Florida

Nazzaro v. Wolfe

541 So. 2d 143, 14 Fla. L. Weekly 841, 1989 Fla. App. LEXIS 1708, 1989 WL 30789

CourtDistrict Court of Appeal of Florida

DecidedApril 4, 1989

DocketNos. 87-838, 88-39

StatusPublished

Cited by1 cases

This text of 541 So. 2d 143 (Nazzaro v. Wolfe) 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

Nazzaro v. Wolfe, 541 So. 2d 143, 14 Fla. L. Weekly 841, 1989 Fla. App. LEXIS 1708, 1989 WL 30789 (Fla. Ct. App. 1989).

Pincite

Opinion

PER CURIAM.

Regina Nazzaro appeals final orders granting summary judgments in favor of Dr. Anthony Wolfe, Dr. Henry Kawamoto, and Cedars Medical Center, defendants in a medical malpractice action brought by Naz-zaro. We affirm the orders but remand for further proceedings.

Nazzaro’s amended complaint sounded in theories of negligence and failure to obtain informed consent. Nazzaro alleged that her injuries resulted from the negligent performance of orthognathic surgery to shorten her upper jaw and reform her chin. Dr. Wolfe filed a motion for summary judgment based upon uncontroverted evidence that Dr. Kawamoto, not Dr. Wolfe, had been Nazzaro’s surgeon and that Nazzaro had signed a general consent form acknowledging the fact.¹ We agree that the [144]*144evidence supports Dr. Wolfe’s entitlement to summary judgment.² See Gooding v. University Hosp. Bldg., Inc., 445 So.2d 1015 (Fla.1984) (to prevail in medical malpractice claim, plaintiff must establish standard of care owed by defendant, defendant’s breach of standard, and that breach proximately caused damages claimed).

In his motion for summary judgment, Dr. Kawamoto argued that Nazzaro had not shown a breach of the prevailing professional standard of care pursuant to section 768.45(1), Florida Statutes (1987). In support of his motion, Dr. Kawamoto attached the affidavit of a physician board certified in plastic and reconstructive surgery who had performed the same surgical procedure. The physician concluded, based upon review of the videotapes of Nazzaro's surgery, deposition testimony, and Cedars’ medical records, that Dr. Kawamoto’s care and treatment was “reasonable and well within the acceptable and appropriate standard of care for this type of procedure.” Nazzaro filed opposing affidavits from a board-certified ear, nose, and throat surgeon and an attorney who was formerly a practicing oral surgeon. The trial court did not err in striking Nazzaro’s affidavits and in ruling that the individuals did not possess “sufficient training, experience, and knowledge as a result of practice or teaching ... within the 5-year period before the accident giving rise to the claim[,]” section 768.45(2)(c), Florida Statutes (1987), so as to provide expert testimony concerning the prevailing professional standard of care in plastic and reconstructive surgery. See Smith v. Coastal Emergency Servs., Inc., 538 So.2d 946 (Fla. 4th DCA 1989). Summary judgment was properly entered on the issue of Dr. Kawamoto’s negligence.

The issue of informed consent, however, was not addressed in Dr. Kawamoto’s motion or supporting affidavit, although Naz-zaro alleged that Dr. Kawamoto failed to advise her of the risks, dangers, and side effects of the surgery. We, therefore, remand for further proceedings on the question of informed consent. See Public Health Trust of Dade County v. Valcin, 507 So.2d 596 (Fla.1987) (notwithstanding signed consents, plaintiff’s allegations on lack of informed consent sufficient to survive motion for summary judgment absent defendant’s showing either that complication was not substantial risk inherent in treatment or that failure to so inform plaintiff accorded with accepted standard of medical practice); cf. Copenhaver v. Miller, 537 So.2d 198 (Fla. 2d DCA 1989).

As to Cedars, Nazzaro alleged only that the hospital negligently permitted Dr. Kawamoto, a licensed California physician, to perform surgery in Florida. In its motion for summary judgment, Cedars asserted compliance with all statutory licensing requirements and hospital procedures concerning “one case” privileges for visiting physicians. We affirm summary judgment for Cedars, based upon Nazzaro’s failure to present competent evidence of Cedar’s negligence or lack of compliance with laws regulating the practice of medicine in Florida.

Affirmed; remanded for further proceedings.

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PER CURIAM.

Regina Nazzaro appeals final orders granting summary judgments in favor of Dr. Anthony Wolfe, Dr. Henry Kawamoto, and Cedars Medical Center, defendants in a medical malpractice action brought by Naz-zaro. We affirm the orders but remand for further proceedings.

Nazzaro’s amended complaint sounded in theories of negligence and failure to obtain informed consent. Nazzaro alleged that her injuries resulted from the negligent performance of orthognathic surgery to shorten her upper jaw and reform her chin. Dr. Wolfe filed a motion for summary judgment based upon uncontroverted evidence that Dr. Kawamoto, not Dr. Wolfe, had been Nazzaro’s surgeon and that Nazzaro had signed a general consent form acknowledging the fact.¹ We agree that the [144]*144evidence supports Dr. Wolfe’s entitlement to summary judgment.² See Gooding v. University Hosp. Bldg., Inc., 445 So.2d 1015 (Fla.1984) (to prevail in medical malpractice claim, plaintiff must establish standard of care owed by defendant, defendant’s breach of standard, and that breach proximately caused damages claimed).

In his motion for summary judgment, Dr. Kawamoto argued that Nazzaro had not shown a breach of the prevailing professional standard of care pursuant to section 768.45(1), Florida Statutes (1987). In support of his motion, Dr. Kawamoto attached the affidavit of a physician board certified in plastic and reconstructive surgery who had performed the same surgical procedure. The physician concluded, based upon review of the videotapes of Nazzaro's surgery, deposition testimony, and Cedars’ medical records, that Dr. Kawamoto’s care and treatment was “reasonable and well within the acceptable and appropriate standard of care for this type of procedure.” Nazzaro filed opposing affidavits from a board-certified ear, nose, and throat surgeon and an attorney who was formerly a practicing oral surgeon. The trial court did not err in striking Nazzaro’s affidavits and in ruling that the individuals did not possess “sufficient training, experience, and knowledge as a result of practice or teaching ... within the 5-year period before the accident giving rise to the claim[,]” section 768.45(2)(c), Florida Statutes (1987), so as to provide expert testimony concerning the prevailing professional standard of care in plastic and reconstructive surgery. See Smith v. Coastal Emergency Servs., Inc., 538 So.2d 946 (Fla. 4th DCA 1989). Summary judgment was properly entered on the issue of Dr. Kawamoto’s negligence.

The issue of informed consent, however, was not addressed in Dr. Kawamoto’s motion or supporting affidavit, although Naz-zaro alleged that Dr. Kawamoto failed to advise her of the risks, dangers, and side effects of the surgery. We, therefore, remand for further proceedings on the question of informed consent. See Public Health Trust of Dade County v. Valcin, 507 So.2d 596 (Fla.1987) (notwithstanding signed consents, plaintiff’s allegations on lack of informed consent sufficient to survive motion for summary judgment absent defendant’s showing either that complication was not substantial risk inherent in treatment or that failure to so inform plaintiff accorded with accepted standard of medical practice); cf. Copenhaver v. Miller, 537 So.2d 198 (Fla. 2d DCA 1989).

As to Cedars, Nazzaro alleged only that the hospital negligently permitted Dr. Kawamoto, a licensed California physician, to perform surgery in Florida. In its motion for summary judgment, Cedars asserted compliance with all statutory licensing requirements and hospital procedures concerning “one case” privileges for visiting physicians. We affirm summary judgment for Cedars, based upon Nazzaro’s failure to present competent evidence of Cedar’s negligence or lack of compliance with laws regulating the practice of medicine in Florida.

Affirmed; remanded for further proceedings.

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541 So. 2d 143, 14 Fla. L. Weekly 841, 1989 Fla. App. LEXIS 1708, 1989 WL 30789, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nazzaro-v-wolfe-fladistctapp-1989.

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