Olsten Health Services, Inc. v. Cody

979 So. 2d 1221, 2008 WL 1883565
CourtDistrict Court of Appeal of Florida
DecidedApril 30, 2008
Docket3D07-212
StatusPublished
Cited by7 cases

This text of 979 So. 2d 1221 (Olsten Health Services, Inc. v. Cody) 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
Olsten Health Services, Inc. v. Cody, 979 So. 2d 1221, 2008 WL 1883565 (Fla. Ct. App. 2008).

Opinion

979 So.2d 1221 (2008)

OLSTEN HEALTH SERVICES, INC., d/b/a Gentiva Health Services, et al., Appellants/Cross-Appellees,
v.
Edmond CODY, Appellee/Cross-Appellant.

No. 3D07-212.

District Court of Appeal of Florida, Third District.

April 30, 2008.

*1222 Carlton Fields and Matthew J. Conigliaro and Christopher J. Kaiser, St. Petersburg, for appellants/cross-appellees.

Ginsberg & Schwartz and Arnold R. Ginsberg; Manuel R. Morales, Jr., Miami, for appellee/cross-appellant.

Before WELLS, ROTHENBERG, and SALTER, JJ.

ON MOTION FOR REHEARING

ROTHENBERG, Judge.

We grant appellant's motion for rehearing, withdraw the opinion issued on March 5, 2008, and substitute the following opinion in its stead.

Olsten Health Services, Inc. d/b/a Gentiva Health Services ("Gentiva") and its insurer, National Union Fire Insurance Company of Pittsburgh, Pa., appeal the amended final judgment entered in favor of the plaintiff, Edmond Cody ("Cody"), following a jury trial. Cody cross-appeals from the same amended final judgment. We affirm.

Cody sued Gentiva, a home healthcare service company, for professional negligence alleging, in part, that its employees breached the standard of professional care by failing to "appropriately diagnose and treat and/or to prevent the formation or aggravation of decubitus ulcers on the Plaintiff resulting in severe and significant injuries to the Plaintiff."

The case proceeded to trial, and the jury returned a verdict finding negligence on the part of both Gentiva and Cody, which was the legal cause of his loss, injury, or damage. The jury awarded a total of $3,050,000 in economic damages and zero dollars in non-economic damages to Cody, apportioning seventy percent of the liability to Gentiva and thirty percent of the liability to Cody. Prior to trial, Cody settled with other entities for a total of $210,000. The trial court entered the final amended judgment in Cody's favor reflecting the jury's verdict and a setoff of the entire $210,000 in settlements.

I. Issues on Appeal

In this appeal, Gentiva contends, in part, that the trial court: (1) erred by denying its motion for directed verdict; (2) abused its discretion by admitting three photographs into evidence and by allowing the jury to take enlarged copies of these photographs into the jury room during its deliberations; and (3) abused its discretion by denying its proposed jury instruction.

*1223 Denial of Motion for Directed Verdict

Gentiva's primary argument in this appeal is that there was insufficient evidence of causation to submit the case to the jury. Thus, Gentiva argues that the trial court erred in denying its motion for a directed verdict. Because this Court, in reviewing a trial court's denial of a motion for directed verdict, is required to view the evidence in the light most favorable to the nonmoving party, and the record reflects expert testimony that Gentiva's employee, Yvette Campbell Edwards, R.N. ("Nurse Edwards"), breached the requisite standard of care, and that Cody's injury was proximately caused by the breach, we conclude that the trial court did not err in denying Gentiva's motion for a directed verdict. See Posner v. Walker, 930 So.2d 659, 665 (Fla. 3d DCA), review denied, 944 So.2d 348 (Fla.2006); Schreidell v. Shoter, 500 So.2d 228, 232 (Fla. 3d DCA 1986) ("A directed verdict is proper only when the record conclusively shows an absence of facts or inferences from facts to support a jury verdict, viewing the evidence in a light most favorable to the nonmoving party.").

The facts, viewed in the light most favorable to Cody, as the nonmoving party, are as follows. On September 1, 2000, Cody, the victim of a crime, was rendered a paraplegic. Thereafter, he was treated at a rehabilitation hospital, and he was discharged on November 15, 2000. Upon discharge, Cody's physician, Dr. Banovac, prescribed daily home health nursing care to monitor his "almost-healed" Stage 2 decubitus pressure ulcer. Gentiva was hired to provide Cody's home health nursing care, and Gentiva assigned its employee, Nurse Edwards, to care for Cody. When Cody's insurer did not approve daily visits, a reduced nursing plan was approved by Dr. Banovac.

Nurse Edwards visited Cody for the first time on November 16, 2000, the day after he was discharged from the rehabilitation hospital. During this visit, she conducted an admission assessment and a wound assessment on Cody, noting that the pressure ulcer located in the area of his tailbone, measured 5 cm by 0.4 cm wide and 0.2 cm deep. Based on her assessments, Nurse Edwards' plan called for the pressure ulcer to be completely healed within three weeks. Following her visit, Nurse Edwards left a voicemail message for Dr. Banovac.

Nurse Edwards' next visit to Cody's home was on November 19, wherein she noted that his pressure ulcer was "100% pink" with no odor.

The following day, on November 20, Nurse Edwards returned to the Cody residence for the next scheduled visit, but she was unable to assess Cody's situation or treat his wound because the front gate that surrounds the home was locked. After unsuccessfully attempting to get buzzed in, Nurse Edwards departed, left a note on the front gate, and left a voicemail message for Dr. Banovac.

Nurse Edwards, however, examined Cody the following day, November 21, and noted that the pressure ulcer was only "90% pink" with a "fetid" odor, a condition which did not improve over the next twenty-four hours since in her notes of November 22, Nurse Edwards reported that there were no changes in the pressure ulcer. Although Nurse Edwards observed these negative changes to the wound on November 21 and November 22, she only left a voice mail message for Dr. Banovac on November 21 and did not even attempt to contact Dr. Banovac on November 22.

Nurse Edwards returned on November 23 for the next scheduled visit, but once again, the front gate was locked, and no one answered when she attempted to get *1224 buzzed in. She left a note on the front gate, and left a voicemail message for Dr. Banovac.

When Nurse Edwards returned to the Cody house the following morning, on November 24, she examined Cody and noted that the pressure ulcer continued to be "90% pink" with a "fetid" odor; there was swelling in his right lower extremity; and she was unable to determine whether the necessary wound care was being followed. Despite these observations, Nurse Edwards did not attempt to contact Dr. Banovac, alter Cody's treatment, or attempt to see Cody over the next two days.

Nurse Edwards' next contact with Cody occurred on November 27. On that day, she reported that there was no odor from the pressure ulcer. However, on that same day, the home healthcare aid observed that Cody was very cold and having chills. Nurse Edwards' notes, however, do not reflect this observation.

The next two visits were scheduled for November 28 and 29. However, the front gate was locked and no one answered when Nurse Edwards attempted to get buzzed in. As before, Nurse Edwards left messages on the front gate, and she also allegedly left voicemail messages for Dr. Banovac.

When Nurse Edwards saw Cody the following day, on November 30, she noted serious changes to the wound.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

NANCY PONN v. METRO EXPRESS, INC.
District Court of Appeal of Florida, 2023
Specialty Hospital-Gainesville, Inc. v. Charles Barth
District Court of Appeal of Florida, 2019
Chaskes v. Gutierrez
116 So. 3d 479 (District Court of Appeal of Florida, 2013)
Union Carbide Corp. v. Aubin
97 So. 3d 886 (District Court of Appeal of Florida, 2012)
Fasani v. Kowalski
43 So. 3d 805 (District Court of Appeal of Florida, 2010)
Braganza v. Carnival Corporation
24 So. 3d 735 (District Court of Appeal of Florida, 2009)
St. Joseph's Hospital v. Cox
14 So. 3d 1124 (District Court of Appeal of Florida, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
979 So. 2d 1221, 2008 WL 1883565, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olsten-health-services-inc-v-cody-fladistctapp-2008.