Variety Children's Hosp., Inc. v. Perkins

382 So. 2d 331, 1980 Fla. App. LEXIS 16398
CourtDistrict Court of Appeal of Florida
DecidedFebruary 5, 1980
Docket79-158, 79-627
StatusPublished
Cited by39 cases

This text of 382 So. 2d 331 (Variety Children's Hosp., Inc. v. Perkins) 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
Variety Children's Hosp., Inc. v. Perkins, 382 So. 2d 331, 1980 Fla. App. LEXIS 16398 (Fla. Ct. App. 1980).

Opinion

382 So.2d 331 (1980)

VARIETY CHILDREN's HOSPITAL, INC., Appellant,
v.
Thomas PERKINS and Sharon Perkins, etc., et al., Appellees.

Nos. 79-158, 79-627.

District Court of Appeal of Florida, Third District.

February 5, 1980.

*333 Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellant.

Fazio, Dawson, Steinberg & DiSalvo, Nancy Little Hoffman, Fort Lauderdale, for appellees.

Before HENDRY, BARKDULL and SCHWARTZ, JJ.

SCHWARTZ, Judge.

Variety Children's Hospital appeals from a $1.2 million judgment entered on a general jury verdict against it in a malpractice action. We affirm.

The case was founded upon allegedly negligent post-operative care rendered to the then-four-month-old Anthony Perkins by the hospital's residents and nurses on the night of July 18-19, 1975. Anthony had been admitted to Variety by a private pediatric and thoracic surgeon, Dr. William Brown, for a tracheotomy to correct a congenital condition in the infant's windpipe. Dr. Brown performed the operation in an uneventful fashion on the evening of July 18. After examining Anthony in the intensive care unit, where he had been taken after the surgery, and giving instructions as to his treatment, Dr. Brown left the hospital at 11:00 p.m. The child came then within the exclusive care of the nurses and residents employed by the hospital, primarily a Dr. Nanes who was the surgical resident on call that night. Following a series of events concerning Anthony's condition which it is unnecessary to detail, he became cyanotic and stopped breathing at about 3:55 a.m. During the five-to-seven minute period which elapsed before the hospital personnel were able to restore his breathing and heartbeat, he sustained devastating and irreversible brain damage. The cause of this medical catastrophe was a massive pneumothorax brought about by the gradual accumulation of trapped air beneath the skin, a condition known as subcutaneous emphysema, which entered the body at the site of the tracheotomy and worked itself down until it broke through the surface of the lung. There was ample expert testimony that both the nurses and residents had been negligent in failing to employ adequate medical procedures in the light of the symptoms of subcutaneous emphysema which Anthony had exhibited for almost two hours before the crisis occurred, and in the resuscitation efforts employed after its onset.

In this court, Variety does not claim that the verdicts of $1,000,000 for Anthony, individually, and $200,000 for his parents are excessive. Nor does it contend that the evidence is insufficient to justify the finding, embodied in the general verdict, that its employees were negligent in the plaintiff's care. Its single point on appeal urges error in the rulings of the trial judge that (a) the hospital was vicariously liable as a matter of law for the conduct of its residents and (b) in therefore denying the defendant's requested instructions which would have permitted the jury to find that the residents were the "borrowed servants" of Dr. Brown so that he, rather than Variety, was responsible for their negligence. For two separate reasons, we reject this contention.

In the first place, the "two issue" rule of appellate review adopted in Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla. 1978), would preclude our even considering the point. At 355 So.2d 1186, the supreme court held:

The question arises where two or more issues are left to the jury, and [either] of which may be determinative of the case, and a general verdict is returned, making it impossible to ascertain the issue(s) upon which the verdict was founded. One line of authority holds that reversal *334 is improper where no error is found as to one of the issues, as the appellant is unable to establish that he has been prejudiced. Berger v. Southern Pacific Co., 144 Cal. App.2d 1, 300 P.2d 170 (Cal. 1st DCA 1956); Altieri v. Peattie Motors, Inc., 121 Conn. 316, 185 A. 75 (1936); Knisely v. Community Traction Co., 125 Ohio St. 131, 180 N.E. 654 (1932); Dwyer v. Christensen, 77 S.D. 381, 92 N.W.2d 199 (1958). This is known in jurisprudence as the "two issue" rule. It is a rule of policy, designed to simplify the work of the trial courts and to limit the scope of proceedings on review. See Harper v. Henry, 110 Ohio App. 233, 169 N.E.2d 20 (Ct.App. 1959).
* * * * * *
We believe that the "two issue" rule represents the better view. At first thought, it may seem that injustice might result in some cases from adoption of this rule. It should be remembered, however, that the remedy is always in the hands of counsel. Counsel may simply request a special verdict as to each count in the case. See Harper v. Henry, supra. Then, there will be no question with respect to the jury's conclusion as to each. If the trial court fails to submit such verdicts to the jury, counsel may raise an appropriate objection.
Had petitioners in the instant case requested special verdicts and objected to submission of a general verdict form to the jury, it would have been necessary for the district court to determine the sufficiency of the evidence to sustain the false imprisonment count as well as the malicious prosecution count. If there was error as to either count, the district court should then remand the case for a new trial as to both counts. However, petitioners failed to meet these requirements. Where the district court determines under these circumstances that one of the issues submitted to the jury was free from prejudicial error, it will be presumed that all issues were decided in favor of the prevailing party and the judgment will be affirmed. See Larriva v. Widmer, 101 Ariz. 1, 415 P.2d 424 (1966).

This doctrine clearly applies to this case. As has been noted, the hospital's only appellate issue concerns its liability for the actions of the physicians-residents involved in Anthony's care. It admits both that the trial court correctly held that it was vicariously responsible, as a matter of law, for the negligence of the nurses in question and that there was evidence of such negligence in the record. The general verdict does not reveal whether the jury found against the defendant because of the actions of the nurses, the residents, or both. Since Variety did not request the submission of special interrogatories which would have shown the basis or bases of the verdict, we are compelled conclusively to presume that the verdict was grounded, at least in part, on the nurses' negligence, as to which it is conceded there was no error committed below. The appellant thus simply cannot establish prejudice in the challenged rulings concerning its responsibility for the residents, and therefore may not secure a reversal even if those rulings were erroneous.

The hospital has lost nothing, however, by its failure properly to preserve the issue in the trial court. Out of what is probably an overabundance of caution, we have examined the merits of its position and find that the trial judge's determinations on the point in question were entirely correct. The record contains no evidence whatever upon which the jury could properly find that Variety's residents, who were employed and paid by the hospital and were under its supervision and control, became "borrowed servants" of Dr. Brown at the time of the commission of their negligent acts.

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Bluebook (online)
382 So. 2d 331, 1980 Fla. App. LEXIS 16398, Counsel Stack Legal Research, https://law.counselstack.com/opinion/variety-childrens-hosp-inc-v-perkins-fladistctapp-1980.