Pohl v. Witcher

477 So. 2d 1015, 10 Fla. L. Weekly 1895, 1985 Fla. App. LEXIS 15486
CourtDistrict Court of Appeal of Florida
DecidedAugust 7, 1985
DocketNo. BA-211
StatusPublished
Cited by1 cases

This text of 477 So. 2d 1015 (Pohl v. Witcher) 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
Pohl v. Witcher, 477 So. 2d 1015, 10 Fla. L. Weekly 1895, 1985 Fla. App. LEXIS 15486 (Fla. Ct. App. 1985).

Opinions

SHIVERS, Judge.

Robert O. Pohl, M.D., individually, and Robert O. Pohl, P.A., a professional corporation, appeal final judgment awarding malpractice damages to Dr. Pohl’s patient, Allen W. Witcher. Appellee Witcher cross-appeals the trial court’s deduction from his award of amount received by appellee from his insurer.

At issue is whether the trial court erred in denying Dr. Pohl’s motion for directed verdict on the basis there was insufficient proof of proximate causation to make out a prima facie case of medical negligence. At issue on the cross-appeal is whether section 768.50, Florida Statutes, prohibits reduction of Witcher’s award by the sum Witch-er received from his insurer. We reverse the judgment on appeal and remand. This moots the issue on cross-appeal.

Allen Witcher injured his left ankle sliding into second base while playing softball. He was treated at the Jacksonville Memorial Hospital emergency room where X-rays were taken. The next day he took the hospital X-rays with him to Dr. Pohl, an orthopedic surgeon. The doctor interpreted the X-rays to reveal an old fracture, but no acute or fresh break. He treated the ankle initially with a compression wrap to control the swelling and then placed the ankle in a non-weight bearing case. The doctor diagnosed Witcher’s injury as a liga-mentous sprain and treated Witcher from May 13, 1978, to July 10, 1978. The doctor took no additional X-rays, relying on those obtained at the emergency room. From the outset and during the doctor’s treatment periods, Witcher continued to experience pain and swelling. After a short walking leg cast was applied, Witcher was advised to begin walking with support of the cast.

Three weeks later, the second east was removed, and Witcher was advised to begin exercising and continue bearing weight upon his left ankle and walking upon it as he could. During the course of treatment by Dr. Pohl, Witcher continued to express concern about the pain, discomfort, swelling and general appearance and deformity of his left ankle and foot. He was advised by appellant Pohl that this was normal and not to be concerned. Eventually, because of his concern over the continued pain, swelling and deformity of his ankle and his inability to bear much weight upon the left ankle, Witcher sought opinions from other orthopedic surgeons in Jacksonville. He did not return for his scheduled appointment with Dr. Pohl in August.

On October 5, 1978, Witcher saw Dr. Hocker, another orthopedic surgeon in Jacksonville, for a second opinion. Dr. Hocker took additional X-rays which revealed a fracture of the head of the talus (the bone of the ankle which articulates with the bones of the leg). Dr. Hocker prescribed a leather brace or, failing that, surgery. Witcher then sought the opinion of another Jacksonville orthopedic surgeon, Dr. Scharf, who recommended surgery after viewing the hospital X-rays as well as Dr. Hocker’s X-rays. On November 3, 1978, Witcher began seeing Dr. Binski, an orthopedic surgeon in Jacksonville who, like Drs. Scharf and Hocker, had difficulty visualizing the fracture on the hospital emergency room X-rays. After taking additional X-rays and tomograms, Dr. Binski concluded that Dr. Pohl had misdiagnosed the injury. Dr. Binski performed surgery in an attempt to salvage the joint without the necessity for fusion but found the salvage procedure could not be done. During the same surgery, Dr. Binski performed a triple arthodesis fusing the three surfaces of the talonavicular joint in Witcher’s left ankle to stabilize the joint, alleviate the [1017]*1017pain and permit some use of his left foot. After the surgery Witcher experiences a deformity and lack of motion which Dr. Binski rated as a 30% medical impairment to the left lower extremity.

Drs. Hocker and Scharf testified that Dr. Pohl’s treatment was within the standard of care for orthopedic surgeons.

Dr. Binski testified, entirely by depositions, that Dr. Pohl’s treatment of Mr. Witcher deviated from the appropriate standard of care for orthopedic surgeons.

Q “Based upon your examination of Allen Witcher, the history he presented, your physical examination of him and his foot and your review of the care and treatment given to him by Dr. Robert Pohl, the Defendant in this case, together with Dr. Pohl’s file and notes, the records which you were able to obtain about him, that is Dr. Pohl’s treatment of Mr. Witcher, the x-rays of Memorial Hospital taken on or about May 5, 1978, which we have been discussing here today, and your training, education and experience and within reasonable medical probability, do you have an opinion if there was a deviation from the standard of care required of orthopedic surgeons by Dr. Pohl in the care and treatment of Allen Witcher?
A “Yes, I do.
Q “Could you state that for us, please, sir?
A “I reviewed Dr. Pohl’s office notes here about the patient’s injury and apparently with reference to the first time he saw him after he was referred from the emergency room at Memorial Hospital. Apparently he was seen the following day. The letter was dated May 12 and I assume that is the day he saw him in his office and Dr. Pohl had written a letter to Dr. Carriere I believe it is, who was the patient’s physician or referring physician indicating that he had sustained an injury to his ankle playing softball and that he was seen at the hospital and x-rays were taken which as he wrote in his letter, which appeared to be an old avulsion fracture of the navicular with possibly an old talar neck fracture and again, also some bony flecks adjacent to the medial malleolus were present. The second paragraph indicates his examination which in summary indicated there was a large amount of soft tissue swelling around the entire ankle and there was also a lot of tenderness present also but there was no exact indication of where that tenderness was present and the remaining was more or less a treatment that he instituted. I feel that Dr. Pohl should have obtained additional x-rays knowing that there was a previous abnormality present on the x-rays which were obtained from Memorial Hospital to better ascertain what that was.
Q “And by not doing that there was a deviation from the standard of care?
A “Yes.”

The first two depositions of Dr. Binski were taken while he was still in Jacksonville, the third one after Dr. Binski had moved to Ohio.

At the close of Witcher’s case, Dr. Pohl moved for a directed verdict on the basis Witcher had failed to present a prima facie case that Dr. Pohl had deviated from the accepted standard of care and further that there was causation by Dr. Pohl for Witch-er’s injuries. The trial court denied the motion. At the close of all the evidence Dr. Pohl renewed his motion for directed verdict which the trial court denied. The jury returned a verdict for appellee Witch-er, and judgment followed. Dr. Pohl moved the court to set aside the verdict and enter judgment in accordance with his earlier motion for directed verdict and for new trial. After argument and review of Dr. Binski’s deposition testimony, the court entered its final judgment in accordance with the verdict of $145,000, but deducting therefrom the $3,693.04 which Witcher received from collateral sources.

To prevail in a medical malpractice case a plaintiff must establish the following: the standard of care owed by the defendant, the defendant’s breach of the standard of care, and that said breach proximately caused the damages claimed.

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Related

Insurance Co. of North America v. Sullivan
475 So. 2d 287 (District Court of Appeal of Florida, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
477 So. 2d 1015, 10 Fla. L. Weekly 1895, 1985 Fla. App. LEXIS 15486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pohl-v-witcher-fladistctapp-1985.