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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL
CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
SALLY SIMON, as Personal Representative
of the Estate of MICHAEL SIMON,
Plaintiff,
vs. CASE NO.: 00-120 CA
MARK ASPERILLA, M.D., MARK ASPERILLA, M.D., P.A.,
a Florida Corporation, DALE GREENBERG, M.D., RONALD
CONSTINE, M.D., LEVY, BAKER, CONSTINE &
GREENBERG, M.D., P.A., a Florida Corporation; SAMUEL
ESTEPA, M.D., PRIMARY CARE PHYSICIANS, INC., a
Florida Corporation, THOMAS K. WANZY, M.D., THOMAS K.
WANZY, M.D., P.A., a Florida Corporation; BALA K.
NANDIGAM, M.D., CHARLOTTE MEDICAL ASSOCIATES,
P.A., a Florida Corporation; MOIDEN MOOPEN, M.D.,
MOIDEN MOOPEN, M.D., P.A., a Florida Corporation;
CARLOS E. MAAS, M.D., CARLOS E. MAAS, M.D., P.A., a
Florida Corporation; NASIR KHALIDI, M.D., P.A., a Florida
Corporation; ST. JOSEPH’S EMERGENCY MEDICAL
PHYSICIANS, a Florida Corporation; FRANK COLUNGA, M.D.
and CHRIS MICKELSON, M.D.,
Defendants.
/
MOVANTS’, DeSANTIS AND ST. JOSEPH’S,
SUMMARY JUDGMENT PACKAGE
COME NOW, the Defendants, KEVIN }. DeSANTIS, M.D. and ST. JOSEPH’S
EMERGENCY MEDICAL PHYSICIANS, a Florida corporation, by and through their
undersigned counsel, and files this their summary judgment package as required by the court’s
special procedure for summary judgment motions issued February 7, 1996 and would show as
follows:
Charlotte County Clerk
61186295 Bat ‘ears s i sa
Case#: 00000 ages: {AGED
AN A | MAcThe Motion for Summary Judgment is attached at Tab 1.
Appropriately annotated issue pleadings are annotated at Tab 2.
The Affidavit of David Siegel, M.D. is attached at Tab 3.
The issues of law to be resolved are:
(a) The absence of evidence that the defendants, DeSANTIS and ST.
JOSEPH’S EMERGENCY MEDICAL PHYSICIANS, a Florida
corporation, deviated from the prevailing professional standard of care; and
(b) The absence of evidence that defendants, DeSANTIS and ST. JOSEPH’S
EMERGENCY MEDICAL PHYSICIANS, caused harm to the plaintiff.
The highlighted legal authorities are attached at Tab 4:
(a) Sims v. Helms, 345 So.2d 721 (Fla. 1977)
(b) Perry v. Langstaff, 383 So.2d 1104 (Fla. 5" DCA, 1980)
(©) Gooding v.University Hosp, Bldg., Inc., 445 So.2d 1015 (Fla. 1984)
Proposed order as to Final Summary Judgment at Tab 5.
CERTIFI OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
via US mail on this 7" _ day of Petite , 2000 to the following:
Thomas A. Culmo, Esq., 2400 S Dixie Highway, Suite 100, Miami, FL 33133, attorney for
Plaintiff; Dennis Koltun, Esq., 7101 SW 102nd Avenue, Miami, FL 33173, co-counsel for
Plaintiff; Lynn H. Groseclose, Esq., 100 Wallace Avenue, Suite 240, Sarasota, FL 34237,
attorney for Mark Asperilla, M.D.; Ross L. Fogleman, III, Esq., 3400 South Tamiami Trail,
Suite 302, Sarasota, FL 34239, attorney for Bala Nandigam, M.D. and Charlotte Medical
2Associates, P.A.; Ronald H. Josepher, Esq. and R. Clifton Acord, II, Esq., Josepher &
Bateese, P.A., First Union Plaza, Suite 1190, 100 South Ashley Street, Tampa, FL 33602,
attorney for Thomas K. Wanzy, M.D.; Kenneth C. Deacon, Jr., Esq., Deacon & Moulds, P.A.,
100 2nd Avenue South, Suite 902S, P.O. Box 16607, St. Petersburg, FL 33733-6607, attorney
for Carlos Maas, M.D. and Moiden Moopen, M.D.; Benito H. Diaz, Esq., 2912 Douglas Road,
Coral Gables, FL 33134, attorney for Samuel Estepa, M.D. and Primary Care Physicians
Organization; John C. Hamilton, Esq., Wicker, Smith, Tutan, O’Hara, et al., 100 North Tampa
Street, Suite 3650, Tampa, FL 33602, attorney for Nasir Khaliki, M.D.; Ralph L. Marchbank,
Jr., Esq., Dickenson & Gibbons, Post Office Box 3979, Sarasota, Florida 34230-3979; and Craig
Stevens, Esq., 2000 Main Street, Suite 402, Fort Myers, FL 33901.
IADBL-MAH\simon.desipleadings\summ-judg pkg. wed
Lutz, WEBB & Boso, P.A.
One Sarasota Tower, Fifth Floor
2 North Tamiami Trail
Sarasota, Florida 34236
Phone: 941-951-1800
Fax: 941-366-
By:
Douglas umpkin, Florida Bar No. 860700
Attorney for Defendants Kevin J. DeSantis, M.D.
and St. Joseph’s Emergency Medical PhysiciansIN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL
CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
SALLY SIMON, as Personal Representative
of the Estate of MICHAEL SIMON,
Plaintiff,
vs. CASE NO.: 00-120 CA
MARK ASPERILLA, M.D., MARK ASPERILLA, M.D., P.A.,
a Florida Corporation; DALE GREENBERG, M.D., RONALD
CONSTINE, M.D., LEVY, BAKER, CONSTINE &
GREENBERG, M.D., P.A., a Florida Corporation; SAMUEL
ESTEPA, M.D., PRIMARY CARE PHYSICIANS, INC., a
Florida Corporation, THOMAS K. WANZY, M.D., THOMAS K.
WANZY, M.D., P.A., a Florida Corporation; BALA K.
NANDIGAM, M.D., CHARLOTTE MEDICAL ASSOCIATES,
P.A., a Florida Corporation; MOIDEN MOOPEN, M.D.,
MOIDEN MOOPEN, M.D., P.A., a Florida Corporation;
CARLOS E. MAAS, M.D., CARLOS E. MAAS, M.D., P.A., a
Florida Corporation; NASIR KHALIDI, M.D., P.A., a Florida
Corporation; ST. JOSEPH’S EMERGENCY MEDICAL
PHYSICIANS, a Florida Corporation; FRANK COLUNGA, M.D.
and CHRIS MICKELSON, M.D.,
Defendants.
/
MOTION FOR SUMMARY JUDGMENT
COME NOW, the Defendants, KEVIN J. DeSANTIS, M.D. and ST. JOSEPH’S
EMERGENCY MEDICAL PHYSICIANS, a Florida corporation, by and through their
undersigned counsel, and pursuant to Florida Rule of Civil Procedure 1.150 and moves this Court
for a summary judgment in their favor and against the plaintiff on the grounds that there is no
material issue of justiciable fact and that the pleadings and other matters of record including the
attached affidavit of medical expert witness, David Siegel, M.D., show that the defendant, KEVINJ. DeSANTIS, M.D. and ST. JOSEPH’S EMERGENCY MEDICAL PHYSICIANS, a Florida
corporation, are entitled to a judgment as a matter of law on all issues.
As specific grounds for this motion, these defendants would show that there is insufficient
evidence that a deviation from the standard of care occurred during MICHAEL SIMON’ contact
with defendant, KEVIN J. DeSANTIS, M.D., or with any personnel of defendant, ST. JOSEPH’S
EMERGENCY MEDICAL PHYSICIANS, a Florida corporation, or that any care and treatment
provided by KEVIN DeSANTIS, M.D. or any personnel of defendant, ST. JOSEPH’S
EMERGENCY MEDICAL PHYSICIANS, a Florida corporation, caused medical injury to
MICHAEL SIMON.
WHEREFORE, these defendants move for summary judgment on the above stated
grounds.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via
US mail on this__A 7° _ day of Betiden , 2000 to the following:
Thomas A. Culmo, Esq., 2400 S Dixie Highway, Suite 100, Miami, FL 33133, attorney for
Plaintiff; Dennis Koltun, Esq., 7101 SW 102nd Avenue, Miami, FL 33173, co-counsel for
Plaintiff; Lynn H. Groseclose, Esq., 100 Wallace Avenue, Suite 240, Sarasota, FL 34237,
attorney for Mark Asperilla, M.D.; Ross L. Fogleman, III, Esq., 3400 South Tamiami Trail,
Suite 302, Sarasota, FL 34239, attorney for Bala Nandigam, M.D. and Charlotte Medical
Associates, P.A.; Ronald H. Josepher, Esq. and R. Clifton Acord, JI, Esq., Josepher &
Bateese, P.A., First Union Plaza, Suite 1190, 100 South Ashley Street, Tampa, FL 33602,
attorney for Thomas K. Wanzy, M_D.; Kenneth C. Deacon, Jr., Esq., Deacon & Moulds, P.A.,
2100 2nd Avenue South, Suite 902S, P.O. Box 16607, St. Petersburg, FL 33733-6607, attorney
for Carlos Maas, M.D. and Moiden Moopen, M.D.; Benito H. Diaz, Esq. , 2912 Douglas Road,
Coral Gables, FL 33134, attorney for Samuel Estepa, M.D. and Primary Care Physicians
Organization; John C. Hamilton, Esq., Wicker, Smith, Tutan, O’Hara, et al., 100 North Tampa
Street, Suite 3650, Tampa, FL 33602, attorney for Nasir Khaliki, M.D.; Ralph L. Marchbank,
Jr., Esq., Dickenson & Gibbons, Post Office Box 3979, Sarasota, Florida 34230-3979; and Craig
Stevens, Esq., 2000 Main Street, Suite 402, Fort Myers, FL 33901.
IADBL-MAH\simon.des\pleadings\summ-judg mot. wpd
Lutz, WEBB & Bozo, P.A.
One Sarasota Tower, Fifth Floor
2 North Tamiami Trail
Sarasota, Florida 34236
Phone: 941-951-1
By:. -
Douglas B. Lumpkin,
Attorney for Defendants Kevin J. DeSantis, M.D.
and St. Joseph’s Emergency Medical PhysiciansNL
ale
IN THE CIRCUIT COURT OF THE 20™
JUDICIAL CIRCUIT IN AND FOR
CHARLOTTE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO:
SALLY SIMON, as Personal Representative
of the Estate of MICHAEL SIMON,
Plaintiff,
vs.
KEVIN J. DeSANTIS, M.D.
Defendant.
/
COMPLAINT
Plaintiff, SALLY SIMON, as Personal Representative of the Estate of MICHAEL
SIMON, hereby sues the Defendant, KEVIN J. DeSANTIS, M.D., and alleges:
JURISDICTION AND PARTIES
1. This is an action for damages in excess of the jurisdictional limits of this Court
exclusive of interest and costs.
2. At all times material hereto, the Plaintiff, SALLY SIMON, was the wife of
MICHAEL SIMON, decedent.
3. At all times material hereto, the Plaintiff, SALLY SIMON, was and is a
resident of Charlotte County, Florida.
4. At all times material hereto, DANIEL SIMON, was the minor child of
MICHAEL SIMON, decedent.
5. At all times material hereto, SALLY SIMON, was and is the duly appointed
personal representative of the ESTATE OF MICHAEL SIMON.
CULMO & CULMO, P.A., 2400 SOUTH DIXIE HIGHWAY, SUITE 100, MIAMI, FL 33133 + (305) 856-4004NE
6. At all times material, Defendant, KEVIN J. DeSANTIS, M.D., (hereinafter
referred to as DeSANTIS) was and is a resident of Charlotte County, Fiorida, and was and
is duly licensed as a physician by the laws of the State of Florida, and was at all times
material, engaged in the practice of emergency medicine in Charlotte County, Florida.
7. All conditions precedent to the bringing of this action have been satisfied,
performed, or otherwise waived. Notice of Intent to Sueletters have been sent pursuant
to Chapter 766 of the Florida Statutes, and the Defendants has denied liability.
FACTS GIVING RISE TO THIS CAUSE OF ACTION
8. On July 23, 1997, MICHAEL SIMON presented to the emergency room where
Defendant DeSANTIS was on duty. SIMON had complaints of back pain and exhibited
signs and symptoms of a severe infectious state. He was admitted to the hospital where
he remained for several days. He was discharged on August 8, 1997 and then readmitted
on August 18, 1997 with similar but worsening symptoms. He was ultimately diagnosed
as suffering from multiple spinal abscesses which caused the patient to become paralyzed.
On August 21, 1997, MICHAEL SIMON died from complications related to his paralysis.
CLAIM AGAINST DR. DESANTIS
9. Plaintiff realleges paragraphs 1 through 9 as though fully set forth herein.
40. On or about July 23, 1997, Defendant DeSANTIS undertook the duty to
provide proper care to Plaintiff, MICHAEL SIMON, with the level of skill, care and.
treatment, which under the circumstances would be recognized as acceptable and
appropriate by similar health care providers in similar medical communities.
Notwithstanding the duty undertaken by DeSANTIS, he committed the following acts or
CULMO & CULMO, P.A., 2400 SOUTH DIXIE HIGHWAY, SUITE 100, MIAMI, FL 33133 + (305) 856-4004omissions, any or all of which were departures from accepted standards of medical care
and treatment in Charlotte County, Florida, or any other similar medical community, to wit:
a. Negligently and carelessly failed to obtain an adequate and complete
history from the patient;
b. Negligently and carelessly failed to order the appropriate diagnostic
tests and studies to determine the patients condition;
c. Negligently and carelessly failed to diagnose the patient's condition;
d. Negligently and carelessly failed to provide appropriate and adequate
treatment to the patient; and,
e. Negligently and carelessly filed to provide timely treatment to the
patient.
41. As adirect and proximate result of the Defendant's negligence, as herein
above alleged, the decedent MICHAEL SIMON suffered serious and permanent losses or
damages and subsequently died.
CLAIM OF THE ESTATE OF MICHAEL SIMON
42. Asadirect and proximate result of the negligence of the Defendant as herein
above alleged, decedent MICHAEL SIMON, suffered in the past and his Estate in the
future will continue to suffer the following damages:
a. Loss of earnings from the date of the injury until decedent's death,
including interest;
b. Loss of net accumulations; and,
c. Medical and funeral expenses.
-3-
CULMO & CULMO, P.A., 2400 SOUTH DIXIE HIGHWAY, SUITE 100, MIAMI, FL 33133 + (305) 856-4004WHEREFORE, Plaintiff demands judgment against Defendant, KEVIN J.
DeSANTIS, M.D., for compensatory damages, court costs, pre-judgment interest and all
other damages this Court deems just and equitable.
CLAIM OF SALLY SIMON
13. Asadirect and proximate result of the negligence of the Defendant, as herein
above alleged, Plaintiff, SALLY SIMON, has in the past and will in the future continue to
suffer the following damages:
a. Loss of support and services from the date of injury, with interest;
b. Loss of support and services from the date of death;
Cc. Loss of companionship and protection; and,
d. Mental pain and suffering from the date of the injury.
WHEREFORE, Plaintiff demands judgment against Defendant, KEVIN J.
DeSANTIS, MD., for compensatory damages, court costs, pre-judgment interest and all
other damages this Court deems just and equitable.
CLAIM OF DANIEL SIMON AS SURVIVOR
14. Asadirect and proximate result of the negligence of the Defendant, as herein
above alleged, Plaintiff, DANIEL SIMON, has in the past and will in the future continue to
suffer the following damages:
a. Loss of support and services from the date of injury, with interest,
b. Loss of support and services from the date of death;
c. Loss of parental companionship, instruction and guidance; and,
d. Mental pain and suffering from the date of the injury.
CULMO & CULMO, P.A., 2400 SOUTH DIXIE HIGHWAY, SUITE 100, MIAMI, FL 33133 + (305) 856-4004,
WHEREFORE, Plaintiff demands judgment against Defendant, KEVIN J.
DeSANTIS, M.D., for compensatory damages, court costs, pre-judgment interest and all
other damages this Court deems just and equitable.
DEMAND FOR JURY TRIAL
Plaintiff demands a trial by jury and all issues so triable as a matter of right by jury.
CERTIFICATE OF PLAINTIFF'S COUNSEL
The undersigned counsel hereby certifies that he has made a reasonable
investigation as permitted by the circumstances that has given rise to a good faith belief
that grounds exist for an action against KEVIN J. DeSANTIS, M.D.
wee
DATE this 25th day of July, 2000.
CULMO & CULMO, P.A.
Counsel for Plaintiff
2400 South Dixie Highway
Suite 100
Miami, Florida 33133
Phone: 305/856-4004
Fax: 305/854-5445
Thomas A. Culmo, Esquire
Fla. Bar #775479
CULMO & CULMO, P.A., 2400 SOUTH DIXIE HIGHWAY, SUITE 100, MIAMI, FL 33133 + (305) 856-4004, Ea
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL
CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
SALLY SIMON, as Personal Representative
of the Estate of MICHAEL SIMON,
Plaintiff,
vs. CASE NO.: 00-120 CA
MARK ASPERILLA, M.D., MARK ASPERILLA, M.D.,
P.A., a Florida Corporation, DALE GREENBERG, M_D.,
RONALD CONSTINE, M.D., LEVY, BAKER, CONSTINE
& GREENBERG, M.D., P.A., a Florida Corporation;
SAMUEL ESTEPA, M.D., PRIMARY CARE PHYSICIANS,
INC., a Florida Corporation; THOMAS K. WANZY, M_D.,
THOMAS K. WANZY, M.D., P.A., a Florida Corporation;
BALA K. NANDIGAM, M.D., CHARLOTTE MEDICAL
ASSOCIATES, P.A., a Florida Corporation, MOIDEN
MOOPEN, M.D., MOIDEN MOOPEN, M.D., P.A., a
Florida Corporation, CARLOS E. MAAS, M.D., CARLOS
E. MAAS, MLD., P.A., a Florida Corporation; NASIR
KHALIDI, M.D., P.A., a Florida Corporation; ST. JOSEPH’S
EMERGENCY MEDICAL PHYSICIANS, a Florida Corporation;
FRANK COLUNGA, M.D. and-CHRIS MICKELSON, M.D.,
Defendants.
ANSWER TO COMPLAINT
COMES NOW, Defendant, KEVIN J. DESANTIS, M.D., by and through the
undersigned attorneys and hereby responds to Plaintiff's Complaint as follows:
1. Admitted for jurisdictional purposes only, otherwise denied.
2. Without knowledge and, therefore, denied.
3. Without knowledge and, therefore, denied.
4. Without knowledge and, therefore, denied.10.
i.
12,
13.
14.
Without knowledge and, therefore, denied.
Admitted.
Denied.
Without knowledge and, therefore, denied.
Defendant reanswers those allegations found in paragraphs 1 through 9 and
further states:
Defendant admits that he appropriately treated Mr. Simon and denies
subparagraphs (a) through (e).
Denied.
Denied.
Denied.
Denied.
AFFIRMATIVE DEFENSES
Defendant having specifically answered each paragraph of the Complaint, now alleges as
separate and affirmative defenses, the following:
FIRST AFFIRMATIVE DEFENSE
Defendant states that the Plaintiff's damages, if any, are the result of an act or omission
of another, whose act or omission is not the responsibility of this Defendant.
COND TIVE DEFENSE
Plaintiff herein has received benefits from collateral sources and Defendant is entitled to
an offset to the extent of any amount that has been paid, payable, or contributed as a result of the
alleges pursuant to Florida Statutes §768.76.THIRD AFFIRMATIVE DEFENSE
That at the time and place and under the circumstances set forth in the Complaint, the
Plaintiff was careless and negligent and said carelessness and negligence was the sole proximate
cause of the occurrence complained of and any injury, damage or loss allegedly sustained
therein.
‘OURTH DEFENSE
Defendant asserts that the incident or damages complained of by Plaintiff were caused by
conditions beyond the control of the Defendant and accordingly, Plaintiff is precluded from
recovery for the alleged damages.
FIFTH AFFIRMATIVE DEFENSE
That such injury as Plaintiff may have suffered was solely the result of the natural and
inexorable process of human disease.
SIXTH AFFIRMATIVE DEFENSE
Defendant is entitled to the applicable provisions of Florida Statutes §768.13, §768.28,
§768.76, §768.78, and §768.81,
JEVENTH TIVE DEFENSE
Plaintiff has failed to mitigate his/her damages as is required by law.
EIGHTH AFFIRMATIVE DEFENSE
Plaintiff has failed to meet conditions precedent by conducting a good faith presuit
investigation.CERTIFICATE OF SERVICE
Thereby certify that a true and correct copy of the foregoing has been furnished via US mail
on this [oe day of August, 2000 to the following: Thomas A. Culmo, Esq., 2400 S Dixie
Highway, Suite 100, Miami, FL 33133; Dennis Koltun, Esq., 7101 SW 102nd Avenue, Miami, FL
33173; Lynn H. Groseclose, Esq., 100 Wallace Avenue, Suite 240, Sarasota, FL 34237; Ross L.
Fogleman, III, Esq., 3400 South Tamiami Trail, Ste. 302, Sarasota, FL 34239; R. Clifton Acord,
Ul, Esq., First Union Plaza, Suite 1190, 100 South Ashley Street, Tampa, FL 33602; Kenneth C.
Deacon, Jr., Esq., P.O. Box 16607, St. Petersburg, FL 33733-6607; Benito H. Diaz, Esq., 2912
Douglas Road, Coral Gables, FL 33134; John C. Hamilton, Esq., 100 North Tampa Strect, Suite
3650, Tampa, FL 33601-2152; and Craig Stevens, Esq., 2000 Main Street, Suite 402, Fort Myers,
FL 33901.
Lutz, Wess & Boso, P.A.
One Sarasota Tower, Fifth Floor
2 North Tamiami Trail
Sarasota, Florida 34236
Phone: 941-951-180
. kin, Florida Bar No. 860700
Mark A. Haskins, Florida Bar No. 881627
Attorneys for the Defendant Kevin J. DeSantis, M.D.
I\DBL-MAH\simon.des\pleadings\ans-aff def.wpd 4\eAFFIDAVIT
STATE OF FLORIDA
COUNTY OF HILLSBOROUGH
BEFORE ME, the undersigned authority, personally appeared David Siegel, M.D., who
after being first duly sworn on oath deposes and states the following.
1.
That he is a physician licensed to practice in the state of Florida, whose Curriculum Vitae
is attached hereto. He has knowledge of the facts contained herein.
That he has reviewed the medical records of Michael Simon including Levy, Baker, et al.,
MD, PA, Bon Secours/St. Joseph’s Hospital Port Charlotte, as well as Claimant's Notice
of Intent and expert affidavit.
That the care provided by Kevin J. DeSantis, M.D., as an emergency room physician, met
the acceptable standard of care of a reasonably prudent health care provider under similar
conditions and circumstances.
That the records show that Michael Simon arrived at Bon Secours/St. Joseph Hospital
Emergency Room on July 23, 1997, at approximately 10:00 a.m. He was seen immediately
by Dr. Kevin DeSantis who noted his history of back strain. At the time of arrival, his vital
signs were BP 130/90, P 110, R 28 and T 102.6. Dr. DeSantis performed a physical
examination and ordered laboratory studies.
Dr. DeSantis’ diagnosis was that of acute pneumonia, acute sepsis, acute hypoxia, acute rapid
atrial fibrillation and acute hyperglycemia. Dr. DeSantis spoke with the attending physician,
Samuel V. Estepa, M.D. The notes indicate that Dr. Estepa was there to visit the patient at
12:10 p.m. and had him admitted. At 12:30 p.m., the patient was taken to ICU.6. Dr. DeSantis appropriately carried out his position as emergency room physician in this
case. Dr. DeSantis examined the patient, ordered appropriate laboratory studies, and called
in the appropriate physicians to ensure that the patient would be admitted to the hospital.
Based upon this review, I see no deviations from the professional standard of care.
7. That he is a medial expert as defined by Florida Statutes, ch. 766 and that he has had no
previous opinion disqualified by a court of law.
FURTHER AFFIANT SAYETH NOT.
DAVID Siegel, M.D.
SWORN AND SUBSCRIBED BEFORE ME this any of June, 2000 by David
Siegel, M.D., who is personally known to me or who has produced a Driver's License as
identification and who did take an oath.
nts den nen nk TEN
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Notary Public
State of Florida at Large
Commission #:lure to give
ately lesser
less if there
t the appel- ‘
ime and the .
nave found
‘as commit~
ginal) 322
ja} court in
instructions
an harmless
Jourt in the
one of first
ad repeated-
court erred
ticular less-
vhether that
Initially,
h supported
it is not in
on lesser-in-
rt is of the
avidence ad-
jury could
g not in fact
vas rejected
0 (Fia.1967).
\ determina-
akes a most
: “error” for.
SIMS v. HELMS
Fla. 721
Clee as, Fla, 348 So2d 721
tion was required, this did not preclude the
evolution of a subsequent line of authority
that held the error to be harmless if, again,
there exists overwhelming evidence that
the defendant committed the crime
charged. It is this theory that is embraced
by the Second District Court of Appeal in
the case sub judice. See also Stephens v.
State, 279 So2d 331 (Fla. 24 DCA 1978).
The major flaw underlying this rationale,
however, is that it revives the very problem
ostensibly remedied in Hand; that is, the
trial court is permitted to invade the prov-
ince of the jury by making a unilateral
determination that a lesser-included offense
instruction is unnecessary because there is
overwhelming evidence to convict the de-
fendant on the crime charged. In such a
situation, whether the judge’s failure to
instruct properly is deemed harmless error
or not error at all is immaterial. In both
cases the effect is the same—the trial judge
successfully takes an important evidentiary
matter from the proper province of the
jury.
Our decision in State v. Terry, supra,
responds to this problem and firmly reiter-
ates the principle enunciated in Hand v.
State. In Terry, the defendant was
charged with assault with intent to commit
murder in the first degree, but was convict-
ed of aggravated assault. The trial court
refused the defendant’s request for an in-
struction on assault and battery and bare
assault. This Court found that the trial
court’s failure to give these instructions
constituted prejudicial error even though
there was strong evidence that the defend-
ant had committed the offense charged.
The Terry decision, presumably based upon
the policy concept of “jury pardon,” clearly
establishes that a trial court will be re-
versed if it fails to instruct properly on
lesser-included offenses. The decision of
the Second District Court of Appeal in
Lightfoot v. State, supra, rendered subse-
quent to the instant case, acknowledges the
Terry rationale,
{2} The principle enunciated in Terry is
equally applicable here. Therefore, we re-
affirm that decision and hold that when
4S 028-16
failure to instruct on a lesser-included of-
fense constitutes error, the harmless error
doctrine will not be invoked. Any such
failure constitutes prejudicial error and is
thus per se reversible.
Any prior appellate decisions conflicting
with the principle announced herein are
overruled. Petition for certiorari is grant-
ed, the decision of the District Court is
quashed, and the cause is remanded for
further proceedings not inconsistent here-
with.
BOYD, ENGLAND and HATCHETT,
JJ,, concur.
OVERTON, C. J., dissents.
M. David SIMS, M.D., Petitioner,
vy.
Mildred L. HELMS and Cecil J.
Helms, Respondents.
No. 49393.
Supreme Court of Florida.
March 31, 1977.
Rehearing Denied May 31, 1977.
Certiorari was brought to review a de-
cision of the Third District Court of Appeal,
330 So.2d 71, holding that there were genu-
ine issues of material fact in a medical
malpractice action. The Supreme Court,
Hatchett, J., held that where-the action did
not involve a charge of negligence based on -
careless administration of approved medical
treatment but rather the issues were
whether defendant properly proceeded in
an emergency situation, so that, without
assistance of expert medical testimony, a
lay jury could not have determined, except
by pure speculation, whether the correct722 Fla.
method of treatment was chosen or wheth-
er there was deviation from accepted medi-
cal practice, there was no case for the jury
in the absence of expert testimony.
Decision quashed, and order of trial
court reinstated.
1. Physicians and Surgeons == 18.90
Where malpractice action did not in-
volve charge of negligence based on care-
jess administration of approved medical
treatment but rather the issues were
whether defendant properly proceeded in
an emergency situation, so that, without.
assistance of expert medical testimony, lay
jury could not have determined, except by
pure speculation, whether correct method of
treatment was chosen or whether there was
deviation from accepted medical practice,
there was no case for jury jn absence of
expert testimony.
Negligence cannot be inferred from
fact that surgery was unsuccessful or ter-
minated in unfortunate results.
3. Judgment > 185.3(21)
For purposes of summary judgment de-
fendant could show absence of genuine is-
sues of material fact by showing conclusive-
ly that plaintiff was unable to present req-
uisite proof of negligence charged in the
pleadings. .
Edward J. Atkins and George W. Ches-
row, Walton, Lantaff, Schroeder & Carson,
Miami, for petitioner.
Leo Greenfield, North Miami, for respon-
dents.
* Initially, respondent claimed that she had
‘obtained the opinions of two physicians who
stated that Dr. Sims had negligently performed
the surgery. Both doctors submitted affidavits
denying that they had expressed such opinions.
in fact, both doctors specifically stated that a
vesico-vaginal fistula is @ recognized hazard of
ail bysterectomies and may occur without any
negligence, even when the surgery is performed
345 SOUTHERN REPORTER, 24 SERIES
HATCHETT, Justice.
This cause is before us on petition for
writ of certiorari to review a decision of the
Third District Court of Appeal, reported at
330 So.2d 71. That decision directly con-
flicts with O'Grady v. Wickman, 213 So.2d
321 (Fla. 4th DCA 1968). We have jurisdic-
tion pursuant to Article V, Section 3(b)(3),
Florida Constitution. We reverse.
Respondents, Mr. and Mrs. Helms, were
the plaintiffs in a medical malpractice ac-
tion against the petitioner. Mrs. Helms
originally consulted, the petitioner, @ spe-
cialist in gynecology, for the purpose of
securing treatment for a prolapsed uterus.
Upon his recommendation, she consented to
a vaginal hysterectomy. During the opera-
tion petitioner inadvertently entered re-
spondent’s bladder while attempting to-sep-
arate it from the uterus. A urologist was
consulted, and the incision was surgically
repaired by the petitioner. Ten days fol-
Jowing respondent's discharge, during 2
post-operative examination. petitioner ob-
served a small leak through @ vesico-vaginal
fistula in the bladder. He referred the
respondent to a urologist, and 8 second op-
eration was performed to close the fistula.
Respondents filed suit, asserting that pe-
titioner’s conduct in performing the hyster-
ectomy fell below the standard of care re-
quired of physicians practicing in the com-
munity. More specifically, respondents
claimed that petitioner negligently entered
and repaired respondent's bladder. Peti-
tioner denied that the operation was negli-
gently performed and submitted depositions
and affidavits establishing that the injury
sustained by the respondent is one of the
ordinary risks involved in hysterectomy sur-
gery. Respondents produced no expert
medical testimony to support their allega-
tions of negligence.” Based upon an af-
under ideal conditions, by the most skillful sur-
geon. Respondent later admitted that neither
doctor had actually told her that Dr. ‘Sims was
negligent. Supplemental answers to mterrogay
tories, filed by the respondent, indicate that she
overheard a conversation between the two doc
tors from which she inferred that petitioner
was negligent.
E
:
firmative show
without ability
the trial judg:
judgment in fi
[1,2] On =<
“that regardles
expert testim:
practice, a jury
tion of commor
was needlessly
supra. Petitio
medical testim
the alleged ne
court properly
ment based or
duce such ‘tes!
ruled in favor
versed the ore
basing its deci:
Atkins y. Hun
In that case we
a physician apy
tightly that tt
Jen, cold, and «
of these condi
the physician
relieve the pre
ed Volkmans’s
her parents s
malpractice bi
mony to prove
ly. The trial
judgment in 3
District Court
versed and he
(JJurors of
and judgme
of reaching
of expert te
involving &
application
proved med
kins v. Hur
But, we also F
treatment is ¢
required. In
testimony, We
(Ekxcept in
nor the jur
to decide, a
proper diagin petition for t
decision of the
zal, reported at
n directly con-
nan, 218 So.2d |
+ have jurisdic- !
Section 3(bX3), j
everse.
3. Helms, were
malpractice ac-
Mrs. Helms
itioner, a spe-
he purpose of
olapsed uterus. i
re consented to !
ring the opera- j
y entered re- |
empting to sep- |
. urologist was t
was surgically |
Ten days fol- i
rge, during @ :
petitioner ob-
2 vesico-vaginal
e referred the
ad a second op-
ose the fistula.
erting that pe-
Jing the hyster-
ard of care re-
ng in the com-
respondents
igently entered
bladder. Peti-
tion was negli-
ted depositions
that the injury
t is one of the
sterectomy sur-
ved no expert
rl their allega-
d upon an af-
most skillful sur
ited that neither
nat Dr. Sims was
ers to interrog-
indicate that she
veen the two doc”
- SIMS v. HELMS Fla 723
Cite as, Fis., 345 $0.24 721
firmative showing that respondents were
without ability to produce such testimony,
the trial judge entered a final summary
judgment in favor of the petitioner.
[1,2] On appeal, respondent argued,
“that regardless of her inability to produce
expert testimony of acceptable medical
practice, a jury could find from the applica-
tion of common knowledge that her bladder
was needlessly pierced.” Helms v. Sims,
supra. Petitioner maintained that expert
medica] testimony was required to prove
the alleged negligence and that the trial
court properly entered a summary judg-
ment based on plaintiff’s inability to pro-
duce such testimony. The District Court
ruled in favor of the respondents and re-
versed the order for summary judgment,
basing its decision on this court's opinion in
Atkins v. Humes, 110 So.2d 663 (Fla.1959).
In that case we dealt with a situation where
a physician applied a cast to a child’s arm so
tightly that the child’s hand became swol-
len, cold, and discolored. Although notified
of these conditions by the child’s parents,
the physician failed to take any action to
relieve the pressure and the child contract-
ed Volkmans’s contracture. The child and
her parents sued the doctor for medical
malpractice but produced no expert testi-
mony to prove that he had acted negligent-
ly. ‘The trial court entered a summary
judgment in favor of the doctor, and the
District Court affirmed on appeal. We re-
versed and held:
{JJurors of ordinary intelligence, sense
and judgment are, in many cases, capable
of reaching a conclusion, without the aid
of expert testimony, in a malpractice case
involving a charge of negligence in the
application or administration of an ap-
proved medical treatment. . . . At
kins v. Humes, supra, at p. 666.
But, we also held that where the method of
treatment is challenged, expert testimony is
required. In explaining the need for such
testimony, we pointed out:
(Elxcept in rare cases, neither the court
nor the jury can or should be permitted
to decide, arbitrarily, what is or is not a
Proper diagnosis or an acceptable method
of treatment of a human ailment.
Atkins v. Humes, supra, at p. 666.
The present case does not involve a charge
of negligence based on the careless adminis-
tration of an approved medical treatment.
Respondent challenges instead petitioner’s
choice of methods and procedure. In per-
forming a hysterectomy, it is necessary to
separate the uterus from the bladder. This
can usually be accomplished by the use of a
blunt instrument, often the fingers. In re-
spondent’s case, the bladder and uterus
were joined by multiple adhesions and peti-
tioner determined that sharp dissection was
necessary. Jt was during this procedure
that respondent’s bladder was inadvertently
entered. According to the decision below,
the issues are whether petitioner “properly
proceeded” in an. “emergency situation” to
separate the uterus and the bladder by use
of a sharp instrument and whether he
“properly proceeded” to repair a puncture
to the bladder. Helms v. Sims, supra. We
are convinced that without the assistance of
expert medical testimony a lay jury could
not have determined, except by pure specu-
lation, whether petitioner chose the correct
method of treatment or whether he deviat-
ed from accepted medical practice. Negli-
_ Bence cannot be inferred from the fact that
the surgery was unsuccessful or terminated
in unfortunate results. Bourgeois v. Dade
County, 99 So.2d 575 (Fla.i957); Hill v.
Boughton, 146 Fla. 505, 1 So.2d 610 (1941);
Anderson v. Gordon, 334 So.2d 107 (Fla. 3d
DCA 1976).
In O'Grady v. Wickman, supra, two doc-
tors were sued for essentially the same act
with which petitioner is charged. During a
hysterectomy operation the patient's blad-
der was inadvertently entered. The blad-
der was repaired, and the patient was dis-
charged from the hospital. A small leak
developed, and a second operation was per-
formed to remedy the damage. During the
second operation, several silk sutures were
discovered at the site of the fistula and
were removed in order to stop the leak.
The court held that the plaintiff was re-
quired to produce expert medical testimony
to determine what skills, means, and meth-724° Fila.
ods were recognized as necessary by physi-
cians practicing in the community. The
overwhelming weight of authority supports
this view. Dazet v. Bass, 254 So.2d 183
{Miss.1971); Helligan v. Cotton, 193 Neb.
381, 227 N.W.2d 10 (1975); Shoberg v. Kel-
ly, 1 Wash.App. 673, 463 P.2d 280 (1969);
Odum v. Cejas, 510 §.W.2d 218 (Mo.App.
1974): Riedisser v. Nelson, 111 Ariz. 542,
534 P.2d 1052 (1975).
[3] The only question remaining is
whether the trial judge properly entered a
Summary judgment for the petitioner based
on an affirmative showing that respondent
was without ability to produce expert medi-
cal testimony in support of her allegations
of negligence. This issue is resolved by our
decision in Holl v. Talcott, 191 So.2d 40
(Fla.1966), where we held that a defendant
may show the absence of genuine issues of
material fact by “showing conclusively that
the plaintiff is unable to present requisite
proof of the negligence charged in the
pleadings.” Id. at 47.
Accordingly, the decision of the Third
District Court of Appeal is quashed and the
order o: the trial court reinstated.
It is so ordered.
OVERTON, C. J., and BOYD, ENG-
LAND and SUNDBERG, JJ., concur.
Merritt H. POWELL, Appeliant,
v
STATE of Florida, Appellee.
No. 49087.
Supreme Court of Florida.
April 7, 1977.
Rebearing Denied May 31, 2977.
In a prosecution for violation of statute
prohibiting reflective or mirrored materials
345 SOUTHERN REPORTER, 2d SERIES
on motor vehicle windows, defendant
moved to dismiss. The County Court, Or-
ange County, Sylvan McElroy, J., denied
the motion and defendant appealed. The
Supreme Court, Adkins, J., held that the
statute does not deny due process or equal
protection.
Affirmed.
1, Constitutional Law ¢=48(3)
Court must, if reasonably possible, con-
sistent with protection of constitutional
rights, resolve all doubts as to validity of
statute in favor of constitutionality and if
reasonably possible statute should be con-
strued so as not to conflict with Constitu-
tion,
2. Constitutional Law ¢=48(1), 70.1(6)
Every presumption is to be indulged in
favor of validity of statute and case is to be
considered in light of principle that state is
primarily judge of regulations in interest of
public safety and welfare.
3. Constitutional Law ¢>212, 253.1
Federal constitutional inhibitions on
deprivation of property without due process
or equal protection are not violated by le-
gitimate exercise of legislative power in
securing health, safety, morals, and general
welfare. U.S.C.A.Const. Amend. 14.
4. Automobiles ==6
Constitutional Law ¢=235, 292
Statute prohibiting reflective or mir-
rored materials on motor vehicle windows is
exercise of police power in promotion of
public safety and does not deny due process
or equal protection. West’s F.S.A. § 316.-
210{(2Xb, d); U.S.C.A.Const. Amend. 14;
West's F.S.A. Const. art. 1, §§ 2, 9.
Merritt H. Powell, in pro. per.
Robert L. Shevin, Atty. Gen., and Antho-
ny J. Golden, Asst. Atty. Gen., for appellee.
ADKINS, Justice.
This case is before us on direct appeal
from an order of the Orange County Court
|
which denied appel
a traffic offense ¢
motion the county
the constitutionali
Florida Statutes.
Article V, Section £
tion.
Section 316.210,
vides in pertinent |
“316.210 Wind:
unobstructed, fixe
with safety glass
“(2\(b) No pers
tor vehicle upon
road, or street, on
is composed of, +
with, any materi
reflective or mir
which has a total
applied to automo
35 percent in th
“(2Xd) No perso
tor vehicle upon
road, or street, 01
and side windows
of or adjacent to
composed of, cover
any material whi
making these glas:
in any way or whi
tive or mirrored a
solar reflectance,
motive glass, grea’
the visible light ré
Appellant received
Orange County on Ja
lation of Section 316
Statutes, in that the
rear window of his
with reflective mate
guilty was entered !
appellant filed a m
charges upon the gro
in question was unco
The motion was denie
March 2, 1976, appella
of $15.00, plus costs +
We have sub judi
constitutionality vel
‘Appellant contends th104 Fla.
peremptory challenges, was not entitled to
ten peremptory challenges after State an-
nounced it would seek life imprisonment
under Habitual Offender Statute. West's
F.S.A. § 775.084(3Xb).
John L. Riley, St. Petersburg, for appel-
lant.
Jim Smith, Atty. Gen., Tallahassee, and
Charles Corces, Jr., Asst. Atty. Gen., Tam-
pa, for appellee.
HOBSON, Acting Chief Judge.
Appellant William G. Inmon, Jr. was
charged by information with involuntary
sexual battery by threatening force against
the victim. Prior te trial, the State served
notice on appellant that his case had been
referred to the Career Criminal Prosecution
Program and that if the case proceeded to
sentencing the State would “request that
the defendant be sentenced pursuant to the
Florida Habitual Offender Statute.” Sec-
tion 775.084, Florida Statutes (1979)! This
notice was based on appellant's prior con-
viction for the same offense.
At trial, appellant exercised six peremp-
tory challenges and attempted a seventh
challenge which was objected to by the
State on the ground that the charge was
not a life felony. Appellant argues that
under the Habitual Offender Statute he
could be sentenced to life imprisonment
and, therefore, should have ten peremptory
challenges. The court upheld the State’s
objection and appellant was restricted to six
peremptory challenges.
Appellant argues, inter alia, that where
an offense charged is a first-degree felony
and the State has announced that it will
seek life imprisonment under the Habitual
Offender Statute, appellant is entitled to
ten peremptory challenges. We are unable
to agree with appellant’s argument and af-
firm the judgment and sentence entered
against him.
Section 775.084(3\(b) provides:
(b) Written notice shall be served on
the defendant and his attorney a suffi-
383 SOUTHERN REPORTER, 2d SERIES
cient time prior to the entry of a plea or
prior to the imposition of sentence so as
to allow the preparation of a submission
on behalf of the defendant. (Emphasis
ours)
We interpret this provision to mean that
the State shall serve notice on the defend-
ant either before he enters a plea of guilty
or nolo contendere, or, in the event he en-
ters a plea of not guilty and submits to
trial, prior to the imposition of sentence.
In the instant case, appellant_was charged
with a first-degree felony which entitled
him to only six peremptory challenges. u
the State had elected to wait until immedi-
ately prior to sentencing to notify appellant
that he would be sentenced under the Ha-
bitual Offender Statute, appellant certainly
would have been limited to the six peremp-
tory challenges allowed under the original
information. The fact that the State chose
to notify appellant prior to trial has no
effect on this issue.
Appellant raises several other issues
which we find to be without merit. There-
fore, we affirm the judgment and sentence
entered against appellant.
AFFIRMED.
BOARDMAN and CAMPBELL, JJ., con-
cur.
Florence PERRY, Appellant,
v.
J. M. LANGSTAFF, M.D. Appellee.
Nos. 78-850/T4-93, 78-1092/T4-93A.
District Court of Appeal of Florida,
Fifth District.
April 23, 1980.
Rehearing Denied June 4, 1980.
Medical malpractice action was brought
against urologist. The Circuit Court, Bre-
1. Notice was pursuant to Section 775.084(3\b), Florida Statutes.
a
4
vard County, C
entered summa
urologist, and a
trict Court of -
physician was
right external il
remove kidney
evidence suppo
proposition tha
ered artery afte
ureter, where
that this type +
with most car
where uncontr
that there had
sear tissue for
surgical procec
Affirmed.
Sharp, J.,
Physicians an
Physician
right external
remove kidne
evidence supf
proposition t]
ered artery af
ureter, where
that this type
with most ¢
where uncon’
that there ha
sear tissue f
surgical proc
Arnold R.
Ginsberg ant
A, Miami, f«
John G. }
Johnson, Ror
for appellee.
COBB, Ju
In this m:
entered a S
fendant urc
initiated t
claimed the
the right e{a plea or
ence so as
submission
(Emphasis
mean that
he defend-
a of guilty
ent he en-
submits to
sentence.
as charged
h entitled -
lenges. If
il immedi-
+ appellant
ar the Ha-
t certainly
‘x peremp-
re original
‘tate chose
al has no
ier issues
it, There-
d sentence
» JJ., con-
PERRY v. LANGSTAFF
Pla 1105
Cite as, FlnApp., $88 So.2d 1104
vard County, Clarence T. Johnson, Jr., J.,
entered summary judgment in favor of
urologist, and appeal was taken. The Dis-
trict Court of Appeal, Cobb, J., held that
physician was not negligent in severing
right external iliac artery during surgery to
remove kidney stones from ureter, despite
evidence supporting, at least inferentially,
proposition that physician surgically sev-
ered artery after identification was made of
ureter, where expert testimony indicated
that this type of incident is recurrent even
with most careful urologic surgeons and
where uncontroverted evidence established
that there had existed extraordinary case of
scar tissue formation resulting from past
surgical procedures and disease.
Affirmed.
Sharp, J., filed a dissenting opinion.
Physicians and Surgeons @18.80(3)
Physician was not negligent in severing.
right external iliac artery during surgery to
remove kidney stones from ureter, despite
evidence supporting, at least inferentially,
proposition that physician surgically sev-
ered artery after identification was made of
ureter, where expert testimony indicated
that this type of incident is recurrent even
with most careful urologic surgeons and
where uncontroverted evidence established
that there had existed extraordinary case of
scar tissue formation resulting from past
surgical procedures and disease.
Arnold R. Ginsberg of Horton, Perse &
Ginsberg and Hawkesworth & Schmick, P.
A., Miami, for appellant.
John G. Rooney of Smalbein, Eubank,
Johnson, Rosier & Bussey, P. A., Rockledge,
for appellee.
COBB, Judge.
In this malpractice action, the trial court
entered a summary judgment for the de-
fendant urologist, and timely appeal was
initiated to this Court. The plaintiff
claimed the defendant negligently severed
the right external iliae artery during sur-
gery to remove kidney stones from the ur-
eter.
The evidence viewed most favorably for
the plaintiff supports, at least inferentially,
the proposition that the defendant surgical-
ly severed the artery after identification
was made of the ureter. Does this consti-
tute actionable negligence based upon a de-
parture from the accepted standard of care
Prescribed by Section 768.45(1}, Florida
Statutes? The appellant asserted at the
trial level arid in her appellate brief that it
does. At least one expert witness, a vaseu-
lar surgeon, Dr. LaRosa, testified in his
deposition that this type of incident is re-
current even with the most careful urologic
surgeons.
The defendant testified before the trial
court that the artery should not be cut in
normal circumstances, but in this case of
abnormal scarring he did not admit that
cutting the artery was negligence. He did
make the statement, “In a normal anatomi-
cal decision, you’d have to be an idiot to cut.
it.” He denied making such a decision, and
the uncontroverted evidence before the trial
+ court was that this was not a normal ana-
tomical situation, but an extraordinary case
of sear tissue formation resulting from past
surgical procedures and disease. No evi-
dence, expert or lay, was presented to the
trial court to support the breach of the
requisite statutory duty under these facts.
Once the movant for summary judgment
has met his initial burden of tendering com-
petent evidence demonstrating the non-ex-
istence of any genuine issue of material
fact, the opposing party must come forward
with counter-evidence sufficient to reveal a
genuine issue. It is not enough to merely
assert that a breach of duty existed. See
Landers v. Milton, 370 So.2d 368 (Fla.1979);
Harvey Building, Inc. v. Haley, 175 So2d
780 (Fla.1965); Farrey v. Bettendorf, 96
So.2d 889 (Fla.1957). Accordingly, the sum-
mary judgment entered by the trial court is
AFFIRMED.
CROSS, J., concurs.
SHARP, J., dissents with opinion.saa pO ian renee
1106 Fla.
SHARP, Judge, dissenting.
This is an appeal from a summary judg-
ment in favor of the defendant/doctor in a
medical malpractice suit, The trial court
relied on Sims v. Helms, 345 So.2d 721 (Fla.
1977), and Thomas v. Berrios, 348 So.2d 905
(Fla. 2d DOA 1977) in granting @ summary
judgment. It stated there were nO material
jssues of fact because the plaintiff would
not be able to provide an expert medical
witness to support her claim at trial. The
plaintiff argues she should have been al-
Jowed to proceed to trial based on the testi-
mony of doctors and the parties adduced at
the medical mediation procedure and pre-
trial discovery.
The defendant performed surgery on the
plaintiff for removal of a kidney stone from
her ureter. Because this was not plaintiff's
first surgery of this nature, there was @
great deal of scar tissue, which made identi-
fication of the ureter difficult. During the
course of the surgery the iliae artery was
cut with a scalpel. Defendant's notes made
immediately following the surgery state:
Dialated ureter was noted and attempts
at disection of this down to the level of
the stone, a vertical clean defect was
made in the right iliac artery.
Two months later the defendant added the
following notation: - “However, in the
course of events, in the dissection of the
sear tissue around the ureter, the right ex-
ternal iliae vessel was lacerated.” One fair
inference from the surgical notes and the
defendant's deposition is that the cut in the
artery happened after he had located and
identified the ureter and the blood vessel
peneath it.
‘The medical testimony focused on the
difficulty in finding and properly locating
the ureter and the artery in a patient who
has previously had surgery in the same
area, and who has & lot of scar tissue. In
such an operation, damage to the artery by
nicking or tearing jt is not unlikely or un-
usual. But the defendant himself admitted
that the artery should not be cut where the
vessel has been identified, or at least such
was a permissible inference from his testi-
mony given at his deposition.
383 SOUTHERN REPORTER, 2d SERIES
Under the circumstances of this case, 1 do
not think Sims and Thomas are controlling.
Both involve medical malpractice suits
against doctors who punctured. other organs
during the course of performing hysterecto-
mies, Apparently punctures of the bladder
or damage to the ureter occur sufficiently
often, in the process of removing the uter-
us
Preview
4 IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION SALLY SIMON, as Personal Representative of the Estate of MICHAEL SIMON, Plaintiff, vs. CASE NO.: 00-120 CA MARK ASPERILLA, M.D., MARK ASPERILLA, M.D., P.A., a Florida Corporation, DALE GREENBERG, M.D., RONALD CONSTINE, M.D., LEVY, BAKER, CONSTINE & GREENBERG, M.D., P.A., a Florida Corporation; SAMUEL ESTEPA, M.D., PRIMARY CARE PHYSICIANS, INC., a Florida Corporation, THOMAS K. WANZY, M.D., THOMAS K. WANZY, M.D., P.A., a Florida Corporation; BALA K. NANDIGAM, M.D., CHARLOTTE MEDICAL ASSOCIATES, P.A., a Florida Corporation; MOIDEN MOOPEN, M.D., MOIDEN MOOPEN, M.D., P.A., a Florida Corporation; CARLOS E. MAAS, M.D., CARLOS E. MAAS, M.D., P.A., a Florida Corporation; NASIR KHALIDI, M.D., P.A., a Florida Corporation; ST. JOSEPH’S EMERGENCY MEDICAL PHYSICIANS, a Florida Corporation; FRANK COLUNGA, M.D. and CHRIS MICKELSON, M.D., Defendants. / MOVANTS’, DeSANTIS AND ST. JOSEPH’S, SUMMARY JUDGMENT PACKAGE COME NOW, the Defendants, KEVIN }. DeSANTIS, M.D. and ST. JOSEPH’S EMERGENCY MEDICAL PHYSICIANS, a Florida corporation, by and through their undersigned counsel, and files this their summary judgment package as required by the court’s special procedure for summary judgment motions issued February 7, 1996 and would show as follows: Charlotte County Clerk 61186295 Bat ‘ears s i sa Case#: 00000 ages: {AGED AN A | MAcThe Motion for Summary Judgment is attached at Tab 1. Appropriately annotated issue pleadings are annotated at Tab 2. The Affidavit of David Siegel, M.D. is attached at Tab 3. The issues of law to be resolved are: (a) The absence of evidence that the defendants, DeSANTIS and ST. JOSEPH’S EMERGENCY MEDICAL PHYSICIANS, a Florida corporation, deviated from the prevailing professional standard of care; and (b) The absence of evidence that defendants, DeSANTIS and ST. JOSEPH’S EMERGENCY MEDICAL PHYSICIANS, caused harm to the plaintiff. The highlighted legal authorities are attached at Tab 4: (a) Sims v. Helms, 345 So.2d 721 (Fla. 1977) (b) Perry v. Langstaff, 383 So.2d 1104 (Fla. 5" DCA, 1980) (©) Gooding v.University Hosp, Bldg., Inc., 445 So.2d 1015 (Fla. 1984) Proposed order as to Final Summary Judgment at Tab 5. CERTIFI OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via US mail on this 7" _ day of Petite , 2000 to the following: Thomas A. Culmo, Esq., 2400 S Dixie Highway, Suite 100, Miami, FL 33133, attorney for Plaintiff; Dennis Koltun, Esq., 7101 SW 102nd Avenue, Miami, FL 33173, co-counsel for Plaintiff; Lynn H. Groseclose, Esq., 100 Wallace Avenue, Suite 240, Sarasota, FL 34237, attorney for Mark Asperilla, M.D.; Ross L. Fogleman, III, Esq., 3400 South Tamiami Trail, Suite 302, Sarasota, FL 34239, attorney for Bala Nandigam, M.D. and Charlotte Medical 2Associates, P.A.; Ronald H. Josepher, Esq. and R. Clifton Acord, II, Esq., Josepher & Bateese, P.A., First Union Plaza, Suite 1190, 100 South Ashley Street, Tampa, FL 33602, attorney for Thomas K. Wanzy, M.D.; Kenneth C. Deacon, Jr., Esq., Deacon & Moulds, P.A., 100 2nd Avenue South, Suite 902S, P.O. Box 16607, St. Petersburg, FL 33733-6607, attorney for Carlos Maas, M.D. and Moiden Moopen, M.D.; Benito H. Diaz, Esq., 2912 Douglas Road, Coral Gables, FL 33134, attorney for Samuel Estepa, M.D. and Primary Care Physicians Organization; John C. Hamilton, Esq., Wicker, Smith, Tutan, O’Hara, et al., 100 North Tampa Street, Suite 3650, Tampa, FL 33602, attorney for Nasir Khaliki, M.D.; Ralph L. Marchbank, Jr., Esq., Dickenson & Gibbons, Post Office Box 3979, Sarasota, Florida 34230-3979; and Craig Stevens, Esq., 2000 Main Street, Suite 402, Fort Myers, FL 33901. IADBL-MAH\simon.desipleadings\summ-judg pkg. wed Lutz, WEBB & Boso, P.A. One Sarasota Tower, Fifth Floor 2 North Tamiami Trail Sarasota, Florida 34236 Phone: 941-951-1800 Fax: 941-366- By: Douglas umpkin, Florida Bar No. 860700 Attorney for Defendants Kevin J. DeSantis, M.D. and St. Joseph’s Emergency Medical PhysiciansIN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION SALLY SIMON, as Personal Representative of the Estate of MICHAEL SIMON, Plaintiff, vs. CASE NO.: 00-120 CA MARK ASPERILLA, M.D., MARK ASPERILLA, M.D., P.A., a Florida Corporation; DALE GREENBERG, M.D., RONALD CONSTINE, M.D., LEVY, BAKER, CONSTINE & GREENBERG, M.D., P.A., a Florida Corporation; SAMUEL ESTEPA, M.D., PRIMARY CARE PHYSICIANS, INC., a Florida Corporation, THOMAS K. WANZY, M.D., THOMAS K. WANZY, M.D., P.A., a Florida Corporation; BALA K. NANDIGAM, M.D., CHARLOTTE MEDICAL ASSOCIATES, P.A., a Florida Corporation; MOIDEN MOOPEN, M.D., MOIDEN MOOPEN, M.D., P.A., a Florida Corporation; CARLOS E. MAAS, M.D., CARLOS E. MAAS, M.D., P.A., a Florida Corporation; NASIR KHALIDI, M.D., P.A., a Florida Corporation; ST. JOSEPH’S EMERGENCY MEDICAL PHYSICIANS, a Florida Corporation; FRANK COLUNGA, M.D. and CHRIS MICKELSON, M.D., Defendants. / MOTION FOR SUMMARY JUDGMENT COME NOW, the Defendants, KEVIN J. DeSANTIS, M.D. and ST. JOSEPH’S EMERGENCY MEDICAL PHYSICIANS, a Florida corporation, by and through their undersigned counsel, and pursuant to Florida Rule of Civil Procedure 1.150 and moves this Court for a summary judgment in their favor and against the plaintiff on the grounds that there is no material issue of justiciable fact and that the pleadings and other matters of record including the attached affidavit of medical expert witness, David Siegel, M.D., show that the defendant, KEVINJ. DeSANTIS, M.D. and ST. JOSEPH’S EMERGENCY MEDICAL PHYSICIANS, a Florida corporation, are entitled to a judgment as a matter of law on all issues. As specific grounds for this motion, these defendants would show that there is insufficient evidence that a deviation from the standard of care occurred during MICHAEL SIMON’ contact with defendant, KEVIN J. DeSANTIS, M.D., or with any personnel of defendant, ST. JOSEPH’S EMERGENCY MEDICAL PHYSICIANS, a Florida corporation, or that any care and treatment provided by KEVIN DeSANTIS, M.D. or any personnel of defendant, ST. JOSEPH’S EMERGENCY MEDICAL PHYSICIANS, a Florida corporation, caused medical injury to MICHAEL SIMON. WHEREFORE, these defendants move for summary judgment on the above stated grounds. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via US mail on this__A 7° _ day of Betiden , 2000 to the following: Thomas A. Culmo, Esq., 2400 S Dixie Highway, Suite 100, Miami, FL 33133, attorney for Plaintiff; Dennis Koltun, Esq., 7101 SW 102nd Avenue, Miami, FL 33173, co-counsel for Plaintiff; Lynn H. Groseclose, Esq., 100 Wallace Avenue, Suite 240, Sarasota, FL 34237, attorney for Mark Asperilla, M.D.; Ross L. Fogleman, III, Esq., 3400 South Tamiami Trail, Suite 302, Sarasota, FL 34239, attorney for Bala Nandigam, M.D. and Charlotte Medical Associates, P.A.; Ronald H. Josepher, Esq. and R. Clifton Acord, JI, Esq., Josepher & Bateese, P.A., First Union Plaza, Suite 1190, 100 South Ashley Street, Tampa, FL 33602, attorney for Thomas K. Wanzy, M_D.; Kenneth C. Deacon, Jr., Esq., Deacon & Moulds, P.A., 2100 2nd Avenue South, Suite 902S, P.O. Box 16607, St. Petersburg, FL 33733-6607, attorney for Carlos Maas, M.D. and Moiden Moopen, M.D.; Benito H. Diaz, Esq. , 2912 Douglas Road, Coral Gables, FL 33134, attorney for Samuel Estepa, M.D. and Primary Care Physicians Organization; John C. Hamilton, Esq., Wicker, Smith, Tutan, O’Hara, et al., 100 North Tampa Street, Suite 3650, Tampa, FL 33602, attorney for Nasir Khaliki, M.D.; Ralph L. Marchbank, Jr., Esq., Dickenson & Gibbons, Post Office Box 3979, Sarasota, Florida 34230-3979; and Craig Stevens, Esq., 2000 Main Street, Suite 402, Fort Myers, FL 33901. IADBL-MAH\simon.des\pleadings\summ-judg mot. wpd Lutz, WEBB & Bozo, P.A. One Sarasota Tower, Fifth Floor 2 North Tamiami Trail Sarasota, Florida 34236 Phone: 941-951-1 By:. - Douglas B. Lumpkin, Attorney for Defendants Kevin J. DeSantis, M.D. and St. Joseph’s Emergency Medical PhysiciansNL ale IN THE CIRCUIT COURT OF THE 20™ JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO: SALLY SIMON, as Personal Representative of the Estate of MICHAEL SIMON, Plaintiff, vs. KEVIN J. DeSANTIS, M.D. Defendant. / COMPLAINT Plaintiff, SALLY SIMON, as Personal Representative of the Estate of MICHAEL SIMON, hereby sues the Defendant, KEVIN J. DeSANTIS, M.D., and alleges: JURISDICTION AND PARTIES 1. This is an action for damages in excess of the jurisdictional limits of this Court exclusive of interest and costs. 2. At all times material hereto, the Plaintiff, SALLY SIMON, was the wife of MICHAEL SIMON, decedent. 3. At all times material hereto, the Plaintiff, SALLY SIMON, was and is a resident of Charlotte County, Florida. 4. At all times material hereto, DANIEL SIMON, was the minor child of MICHAEL SIMON, decedent. 5. At all times material hereto, SALLY SIMON, was and is the duly appointed personal representative of the ESTATE OF MICHAEL SIMON. CULMO & CULMO, P.A., 2400 SOUTH DIXIE HIGHWAY, SUITE 100, MIAMI, FL 33133 + (305) 856-4004NE 6. At all times material, Defendant, KEVIN J. DeSANTIS, M.D., (hereinafter referred to as DeSANTIS) was and is a resident of Charlotte County, Fiorida, and was and is duly licensed as a physician by the laws of the State of Florida, and was at all times material, engaged in the practice of emergency medicine in Charlotte County, Florida. 7. All conditions precedent to the bringing of this action have been satisfied, performed, or otherwise waived. Notice of Intent to Sueletters have been sent pursuant to Chapter 766 of the Florida Statutes, and the Defendants has denied liability. FACTS GIVING RISE TO THIS CAUSE OF ACTION 8. On July 23, 1997, MICHAEL SIMON presented to the emergency room where Defendant DeSANTIS was on duty. SIMON had complaints of back pain and exhibited signs and symptoms of a severe infectious state. He was admitted to the hospital where he remained for several days. He was discharged on August 8, 1997 and then readmitted on August 18, 1997 with similar but worsening symptoms. He was ultimately diagnosed as suffering from multiple spinal abscesses which caused the patient to become paralyzed. On August 21, 1997, MICHAEL SIMON died from complications related to his paralysis. CLAIM AGAINST DR. DESANTIS 9. Plaintiff realleges paragraphs 1 through 9 as though fully set forth herein. 40. On or about July 23, 1997, Defendant DeSANTIS undertook the duty to provide proper care to Plaintiff, MICHAEL SIMON, with the level of skill, care and. treatment, which under the circumstances would be recognized as acceptable and appropriate by similar health care providers in similar medical communities. Notwithstanding the duty undertaken by DeSANTIS, he committed the following acts or CULMO & CULMO, P.A., 2400 SOUTH DIXIE HIGHWAY, SUITE 100, MIAMI, FL 33133 + (305) 856-4004omissions, any or all of which were departures from accepted standards of medical care and treatment in Charlotte County, Florida, or any other similar medical community, to wit: a. Negligently and carelessly failed to obtain an adequate and complete history from the patient; b. Negligently and carelessly failed to order the appropriate diagnostic tests and studies to determine the patients condition; c. Negligently and carelessly failed to diagnose the patient's condition; d. Negligently and carelessly failed to provide appropriate and adequate treatment to the patient; and, e. Negligently and carelessly filed to provide timely treatment to the patient. 41. As adirect and proximate result of the Defendant's negligence, as herein above alleged, the decedent MICHAEL SIMON suffered serious and permanent losses or damages and subsequently died. CLAIM OF THE ESTATE OF MICHAEL SIMON 42. Asadirect and proximate result of the negligence of the Defendant as herein above alleged, decedent MICHAEL SIMON, suffered in the past and his Estate in the future will continue to suffer the following damages: a. Loss of earnings from the date of the injury until decedent's death, including interest; b. Loss of net accumulations; and, c. Medical and funeral expenses. -3- CULMO & CULMO, P.A., 2400 SOUTH DIXIE HIGHWAY, SUITE 100, MIAMI, FL 33133 + (305) 856-4004WHEREFORE, Plaintiff demands judgment against Defendant, KEVIN J. DeSANTIS, M.D., for compensatory damages, court costs, pre-judgment interest and all other damages this Court deems just and equitable. CLAIM OF SALLY SIMON 13. Asadirect and proximate result of the negligence of the Defendant, as herein above alleged, Plaintiff, SALLY SIMON, has in the past and will in the future continue to suffer the following damages: a. Loss of support and services from the date of injury, with interest; b. Loss of support and services from the date of death; Cc. Loss of companionship and protection; and, d. Mental pain and suffering from the date of the injury. WHEREFORE, Plaintiff demands judgment against Defendant, KEVIN J. DeSANTIS, MD., for compensatory damages, court costs, pre-judgment interest and all other damages this Court deems just and equitable. CLAIM OF DANIEL SIMON AS SURVIVOR 14. Asadirect and proximate result of the negligence of the Defendant, as herein above alleged, Plaintiff, DANIEL SIMON, has in the past and will in the future continue to suffer the following damages: a. Loss of support and services from the date of injury, with interest, b. Loss of support and services from the date of death; c. Loss of parental companionship, instruction and guidance; and, d. Mental pain and suffering from the date of the injury. CULMO & CULMO, P.A., 2400 SOUTH DIXIE HIGHWAY, SUITE 100, MIAMI, FL 33133 + (305) 856-4004, WHEREFORE, Plaintiff demands judgment against Defendant, KEVIN J. DeSANTIS, M.D., for compensatory damages, court costs, pre-judgment interest and all other damages this Court deems just and equitable. DEMAND FOR JURY TRIAL Plaintiff demands a trial by jury and all issues so triable as a matter of right by jury. CERTIFICATE OF PLAINTIFF'S COUNSEL The undersigned counsel hereby certifies that he has made a reasonable investigation as permitted by the circumstances that has given rise to a good faith belief that grounds exist for an action against KEVIN J. DeSANTIS, M.D. wee DATE this 25th day of July, 2000. CULMO & CULMO, P.A. Counsel for Plaintiff 2400 South Dixie Highway Suite 100 Miami, Florida 33133 Phone: 305/856-4004 Fax: 305/854-5445 Thomas A. Culmo, Esquire Fla. Bar #775479 CULMO & CULMO, P.A., 2400 SOUTH DIXIE HIGHWAY, SUITE 100, MIAMI, FL 33133 + (305) 856-4004, Ea IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION SALLY SIMON, as Personal Representative of the Estate of MICHAEL SIMON, Plaintiff, vs. CASE NO.: 00-120 CA MARK ASPERILLA, M.D., MARK ASPERILLA, M.D., P.A., a Florida Corporation, DALE GREENBERG, M_D., RONALD CONSTINE, M.D., LEVY, BAKER, CONSTINE & GREENBERG, M.D., P.A., a Florida Corporation; SAMUEL ESTEPA, M.D., PRIMARY CARE PHYSICIANS, INC., a Florida Corporation; THOMAS K. WANZY, M_D., THOMAS K. WANZY, M.D., P.A., a Florida Corporation; BALA K. NANDIGAM, M.D., CHARLOTTE MEDICAL ASSOCIATES, P.A., a Florida Corporation, MOIDEN MOOPEN, M.D., MOIDEN MOOPEN, M.D., P.A., a Florida Corporation, CARLOS E. MAAS, M.D., CARLOS E. MAAS, MLD., P.A., a Florida Corporation; NASIR KHALIDI, M.D., P.A., a Florida Corporation; ST. JOSEPH’S EMERGENCY MEDICAL PHYSICIANS, a Florida Corporation; FRANK COLUNGA, M.D. and-CHRIS MICKELSON, M.D., Defendants. ANSWER TO COMPLAINT COMES NOW, Defendant, KEVIN J. DESANTIS, M.D., by and through the undersigned attorneys and hereby responds to Plaintiff's Complaint as follows: 1. Admitted for jurisdictional purposes only, otherwise denied. 2. Without knowledge and, therefore, denied. 3. Without knowledge and, therefore, denied. 4. Without knowledge and, therefore, denied.10. i. 12, 13. 14. Without knowledge and, therefore, denied. Admitted. Denied. Without knowledge and, therefore, denied. Defendant reanswers those allegations found in paragraphs 1 through 9 and further states: Defendant admits that he appropriately treated Mr. Simon and denies subparagraphs (a) through (e). Denied. Denied. Denied. Denied. AFFIRMATIVE DEFENSES Defendant having specifically answered each paragraph of the Complaint, now alleges as separate and affirmative defenses, the following: FIRST AFFIRMATIVE DEFENSE Defendant states that the Plaintiff's damages, if any, are the result of an act or omission of another, whose act or omission is not the responsibility of this Defendant. COND TIVE DEFENSE Plaintiff herein has received benefits from collateral sources and Defendant is entitled to an offset to the extent of any amount that has been paid, payable, or contributed as a result of the alleges pursuant to Florida Statutes §768.76.THIRD AFFIRMATIVE DEFENSE That at the time and place and under the circumstances set forth in the Complaint, the Plaintiff was careless and negligent and said carelessness and negligence was the sole proximate cause of the occurrence complained of and any injury, damage or loss allegedly sustained therein. ‘OURTH DEFENSE Defendant asserts that the incident or damages complained of by Plaintiff were caused by conditions beyond the control of the Defendant and accordingly, Plaintiff is precluded from recovery for the alleged damages. FIFTH AFFIRMATIVE DEFENSE That such injury as Plaintiff may have suffered was solely the result of the natural and inexorable process of human disease. SIXTH AFFIRMATIVE DEFENSE Defendant is entitled to the applicable provisions of Florida Statutes §768.13, §768.28, §768.76, §768.78, and §768.81, JEVENTH TIVE DEFENSE Plaintiff has failed to mitigate his/her damages as is required by law. EIGHTH AFFIRMATIVE DEFENSE Plaintiff has failed to meet conditions precedent by conducting a good faith presuit investigation.CERTIFICATE OF SERVICE Thereby certify that a true and correct copy of the foregoing has been furnished via US mail on this [oe day of August, 2000 to the following: Thomas A. Culmo, Esq., 2400 S Dixie Highway, Suite 100, Miami, FL 33133; Dennis Koltun, Esq., 7101 SW 102nd Avenue, Miami, FL 33173; Lynn H. Groseclose, Esq., 100 Wallace Avenue, Suite 240, Sarasota, FL 34237; Ross L. Fogleman, III, Esq., 3400 South Tamiami Trail, Ste. 302, Sarasota, FL 34239; R. Clifton Acord, Ul, Esq., First Union Plaza, Suite 1190, 100 South Ashley Street, Tampa, FL 33602; Kenneth C. Deacon, Jr., Esq., P.O. Box 16607, St. Petersburg, FL 33733-6607; Benito H. Diaz, Esq., 2912 Douglas Road, Coral Gables, FL 33134; John C. Hamilton, Esq., 100 North Tampa Strect, Suite 3650, Tampa, FL 33601-2152; and Craig Stevens, Esq., 2000 Main Street, Suite 402, Fort Myers, FL 33901. Lutz, Wess & Boso, P.A. One Sarasota Tower, Fifth Floor 2 North Tamiami Trail Sarasota, Florida 34236 Phone: 941-951-180 . kin, Florida Bar No. 860700 Mark A. Haskins, Florida Bar No. 881627 Attorneys for the Defendant Kevin J. DeSantis, M.D. I\DBL-MAH\simon.des\pleadings\ans-aff def.wpd 4\eAFFIDAVIT STATE OF FLORIDA COUNTY OF HILLSBOROUGH BEFORE ME, the undersigned authority, personally appeared David Siegel, M.D., who after being first duly sworn on oath deposes and states the following. 1. That he is a physician licensed to practice in the state of Florida, whose Curriculum Vitae is attached hereto. He has knowledge of the facts contained herein. That he has reviewed the medical records of Michael Simon including Levy, Baker, et al., MD, PA, Bon Secours/St. Joseph’s Hospital Port Charlotte, as well as Claimant's Notice of Intent and expert affidavit. That the care provided by Kevin J. DeSantis, M.D., as an emergency room physician, met the acceptable standard of care of a reasonably prudent health care provider under similar conditions and circumstances. That the records show that Michael Simon arrived at Bon Secours/St. Joseph Hospital Emergency Room on July 23, 1997, at approximately 10:00 a.m. He was seen immediately by Dr. Kevin DeSantis who noted his history of back strain. At the time of arrival, his vital signs were BP 130/90, P 110, R 28 and T 102.6. Dr. DeSantis performed a physical examination and ordered laboratory studies. Dr. DeSantis’ diagnosis was that of acute pneumonia, acute sepsis, acute hypoxia, acute rapid atrial fibrillation and acute hyperglycemia. Dr. DeSantis spoke with the attending physician, Samuel V. Estepa, M.D. The notes indicate that Dr. Estepa was there to visit the patient at 12:10 p.m. and had him admitted. At 12:30 p.m., the patient was taken to ICU.6. Dr. DeSantis appropriately carried out his position as emergency room physician in this case. Dr. DeSantis examined the patient, ordered appropriate laboratory studies, and called in the appropriate physicians to ensure that the patient would be admitted to the hospital. Based upon this review, I see no deviations from the professional standard of care. 7. That he is a medial expert as defined by Florida Statutes, ch. 766 and that he has had no previous opinion disqualified by a court of law. FURTHER AFFIANT SAYETH NOT. DAVID Siegel, M.D. SWORN AND SUBSCRIBED BEFORE ME this any of June, 2000 by David Siegel, M.D., who is personally known to me or who has produced a Driver's License as identification and who did take an oath. nts den nen nk TEN » (SEAL) | A DEBBIE A, KEMP ig (eas) My Comm Gp. tg008 | i 4 No. ¢ snap { U1 Ressonally Koowm 6 4 \ ms Notary Public State of Florida at Large Commission #:lure to give ately lesser less if there t the appel- ‘ ime and the . nave found ‘as commit~ ginal) 322 ja} court in instructions an harmless Jourt in the one of first ad repeated- court erred ticular less- vhether that Initially, h supported it is not in on lesser-in- rt is of the avidence ad- jury could g not in fact vas rejected 0 (Fia.1967). \ determina- akes a most : “error” for. SIMS v. HELMS Fla. 721 Clee as, Fla, 348 So2d 721 tion was required, this did not preclude the evolution of a subsequent line of authority that held the error to be harmless if, again, there exists overwhelming evidence that the defendant committed the crime charged. It is this theory that is embraced by the Second District Court of Appeal in the case sub judice. See also Stephens v. State, 279 So2d 331 (Fla. 24 DCA 1978). The major flaw underlying this rationale, however, is that it revives the very problem ostensibly remedied in Hand; that is, the trial court is permitted to invade the prov- ince of the jury by making a unilateral determination that a lesser-included offense instruction is unnecessary because there is overwhelming evidence to convict the de- fendant on the crime charged. In such a situation, whether the judge’s failure to instruct properly is deemed harmless error or not error at all is immaterial. In both cases the effect is the same—the trial judge successfully takes an important evidentiary matter from the proper province of the jury. Our decision in State v. Terry, supra, responds to this problem and firmly reiter- ates the principle enunciated in Hand v. State. In Terry, the defendant was charged with assault with intent to commit murder in the first degree, but was convict- ed of aggravated assault. The trial court refused the defendant’s request for an in- struction on assault and battery and bare assault. This Court found that the trial court’s failure to give these instructions constituted prejudicial error even though there was strong evidence that the defend- ant had committed the offense charged. The Terry decision, presumably based upon the policy concept of “jury pardon,” clearly establishes that a trial court will be re- versed if it fails to instruct properly on lesser-included offenses. The decision of the Second District Court of Appeal in Lightfoot v. State, supra, rendered subse- quent to the instant case, acknowledges the Terry rationale, {2} The principle enunciated in Terry is equally applicable here. Therefore, we re- affirm that decision and hold that when 4S 028-16 failure to instruct on a lesser-included of- fense constitutes error, the harmless error doctrine will not be invoked. Any such failure constitutes prejudicial error and is thus per se reversible. Any prior appellate decisions conflicting with the principle announced herein are overruled. Petition for certiorari is grant- ed, the decision of the District Court is quashed, and the cause is remanded for further proceedings not inconsistent here- with. BOYD, ENGLAND and HATCHETT, JJ,, concur. OVERTON, C. J., dissents. M. David SIMS, M.D., Petitioner, vy. Mildred L. HELMS and Cecil J. Helms, Respondents. No. 49393. Supreme Court of Florida. March 31, 1977. Rehearing Denied May 31, 1977. Certiorari was brought to review a de- cision of the Third District Court of Appeal, 330 So.2d 71, holding that there were genu- ine issues of material fact in a medical malpractice action. The Supreme Court, Hatchett, J., held that where-the action did not involve a charge of negligence based on - careless administration of approved medical treatment but rather the issues were whether defendant properly proceeded in an emergency situation, so that, without assistance of expert medical testimony, a lay jury could not have determined, except by pure speculation, whether the correct722 Fla. method of treatment was chosen or wheth- er there was deviation from accepted medi- cal practice, there was no case for the jury in the absence of expert testimony. Decision quashed, and order of trial court reinstated. 1. Physicians and Surgeons == 18.90 Where malpractice action did not in- volve charge of negligence based on care- jess administration of approved medical treatment but rather the issues were whether defendant properly proceeded in an emergency situation, so that, without. assistance of expert medical testimony, lay jury could not have determined, except by pure speculation, whether correct method of treatment was chosen or whether there was deviation from accepted medical practice, there was no case for jury jn absence of expert testimony. Negligence cannot be inferred from fact that surgery was unsuccessful or ter- minated in unfortunate results. 3. Judgment > 185.3(21) For purposes of summary judgment de- fendant could show absence of genuine is- sues of material fact by showing conclusive- ly that plaintiff was unable to present req- uisite proof of negligence charged in the pleadings. . Edward J. Atkins and George W. Ches- row, Walton, Lantaff, Schroeder & Carson, Miami, for petitioner. Leo Greenfield, North Miami, for respon- dents. * Initially, respondent claimed that she had ‘obtained the opinions of two physicians who stated that Dr. Sims had negligently performed the surgery. Both doctors submitted affidavits denying that they had expressed such opinions. in fact, both doctors specifically stated that a vesico-vaginal fistula is @ recognized hazard of ail bysterectomies and may occur without any negligence, even when the surgery is performed 345 SOUTHERN REPORTER, 24 SERIES HATCHETT, Justice. This cause is before us on petition for writ of certiorari to review a decision of the Third District Court of Appeal, reported at 330 So.2d 71. That decision directly con- flicts with O'Grady v. Wickman, 213 So.2d 321 (Fla. 4th DCA 1968). We have jurisdic- tion pursuant to Article V, Section 3(b)(3), Florida Constitution. We reverse. Respondents, Mr. and Mrs. Helms, were the plaintiffs in a medical malpractice ac- tion against the petitioner. Mrs. Helms originally consulted, the petitioner, @ spe- cialist in gynecology, for the purpose of securing treatment for a prolapsed uterus. Upon his recommendation, she consented to a vaginal hysterectomy. During the opera- tion petitioner inadvertently entered re- spondent’s bladder while attempting to-sep- arate it from the uterus. A urologist was consulted, and the incision was surgically repaired by the petitioner. Ten days fol- Jowing respondent's discharge, during 2 post-operative examination. petitioner ob- served a small leak through @ vesico-vaginal fistula in the bladder. He referred the respondent to a urologist, and 8 second op- eration was performed to close the fistula. Respondents filed suit, asserting that pe- titioner’s conduct in performing the hyster- ectomy fell below the standard of care re- quired of physicians practicing in the com- munity. More specifically, respondents claimed that petitioner negligently entered and repaired respondent's bladder. Peti- tioner denied that the operation was negli- gently performed and submitted depositions and affidavits establishing that the injury sustained by the respondent is one of the ordinary risks involved in hysterectomy sur- gery. Respondents produced no expert medical testimony to support their allega- tions of negligence.” Based upon an af- under ideal conditions, by the most skillful sur- geon. Respondent later admitted that neither doctor had actually told her that Dr. ‘Sims was negligent. Supplemental answers to mterrogay tories, filed by the respondent, indicate that she overheard a conversation between the two doc tors from which she inferred that petitioner was negligent. E : firmative show without ability the trial judg: judgment in fi [1,2] On =< “that regardles expert testim: practice, a jury tion of commor was needlessly supra. Petitio medical testim the alleged ne court properly ment based or duce such ‘tes! ruled in favor versed the ore basing its deci: Atkins y. Hun In that case we a physician apy tightly that tt Jen, cold, and « of these condi the physician relieve the pre ed Volkmans’s her parents s malpractice bi mony to prove ly. The trial judgment in 3 District Court versed and he (JJurors of and judgme of reaching of expert te involving & application proved med kins v. Hur But, we also F treatment is ¢ required. In testimony, We (Ekxcept in nor the jur to decide, a proper diagin petition for t decision of the zal, reported at n directly con- nan, 218 So.2d | + have jurisdic- ! Section 3(bX3), j everse. 3. Helms, were malpractice ac- Mrs. Helms itioner, a spe- he purpose of olapsed uterus. i re consented to ! ring the opera- j y entered re- | empting to sep- | . urologist was t was surgically | Ten days fol- i rge, during @ : petitioner ob- 2 vesico-vaginal e referred the ad a second op- ose the fistula. erting that pe- Jing the hyster- ard of care re- ng in the com- respondents igently entered bladder. Peti- tion was negli- ted depositions that the injury t is one of the sterectomy sur- ved no expert rl their allega- d upon an af- most skillful sur ited that neither nat Dr. Sims was ers to interrog- indicate that she veen the two doc” - SIMS v. HELMS Fla 723 Cite as, Fis., 345 $0.24 721 firmative showing that respondents were without ability to produce such testimony, the trial judge entered a final summary judgment in favor of the petitioner. [1,2] On appeal, respondent argued, “that regardless of her inability to produce expert testimony of acceptable medical practice, a jury could find from the applica- tion of common knowledge that her bladder was needlessly pierced.” Helms v. Sims, supra. Petitioner maintained that expert medica] testimony was required to prove the alleged negligence and that the trial court properly entered a summary judg- ment based on plaintiff’s inability to pro- duce such testimony. The District Court ruled in favor of the respondents and re- versed the order for summary judgment, basing its decision on this court's opinion in Atkins v. Humes, 110 So.2d 663 (Fla.1959). In that case we dealt with a situation where a physician applied a cast to a child’s arm so tightly that the child’s hand became swol- len, cold, and discolored. Although notified of these conditions by the child’s parents, the physician failed to take any action to relieve the pressure and the child contract- ed Volkmans’s contracture. The child and her parents sued the doctor for medical malpractice but produced no expert testi- mony to prove that he had acted negligent- ly. ‘The trial court entered a summary judgment in favor of the doctor, and the District Court affirmed on appeal. We re- versed and held: {JJurors of ordinary intelligence, sense and judgment are, in many cases, capable of reaching a conclusion, without the aid of expert testimony, in a malpractice case involving a charge of negligence in the application or administration of an ap- proved medical treatment. . . . At kins v. Humes, supra, at p. 666. But, we also held that where the method of treatment is challenged, expert testimony is required. In explaining the need for such testimony, we pointed out: (Elxcept in rare cases, neither the court nor the jury can or should be permitted to decide, arbitrarily, what is or is not a Proper diagnosis or an acceptable method of treatment of a human ailment. Atkins v. Humes, supra, at p. 666. The present case does not involve a charge of negligence based on the careless adminis- tration of an approved medical treatment. Respondent challenges instead petitioner’s choice of methods and procedure. In per- forming a hysterectomy, it is necessary to separate the uterus from the bladder. This can usually be accomplished by the use of a blunt instrument, often the fingers. In re- spondent’s case, the bladder and uterus were joined by multiple adhesions and peti- tioner determined that sharp dissection was necessary. Jt was during this procedure that respondent’s bladder was inadvertently entered. According to the decision below, the issues are whether petitioner “properly proceeded” in an. “emergency situation” to separate the uterus and the bladder by use of a sharp instrument and whether he “properly proceeded” to repair a puncture to the bladder. Helms v. Sims, supra. We are convinced that without the assistance of expert medical testimony a lay jury could not have determined, except by pure specu- lation, whether petitioner chose the correct method of treatment or whether he deviat- ed from accepted medical practice. Negli- _ Bence cannot be inferred from the fact that the surgery was unsuccessful or terminated in unfortunate results. Bourgeois v. Dade County, 99 So.2d 575 (Fla.i957); Hill v. Boughton, 146 Fla. 505, 1 So.2d 610 (1941); Anderson v. Gordon, 334 So.2d 107 (Fla. 3d DCA 1976). In O'Grady v. Wickman, supra, two doc- tors were sued for essentially the same act with which petitioner is charged. During a hysterectomy operation the patient's blad- der was inadvertently entered. The blad- der was repaired, and the patient was dis- charged from the hospital. A small leak developed, and a second operation was per- formed to remedy the damage. During the second operation, several silk sutures were discovered at the site of the fistula and were removed in order to stop the leak. The court held that the plaintiff was re- quired to produce expert medical testimony to determine what skills, means, and meth-724° Fila. ods were recognized as necessary by physi- cians practicing in the community. The overwhelming weight of authority supports this view. Dazet v. Bass, 254 So.2d 183 {Miss.1971); Helligan v. Cotton, 193 Neb. 381, 227 N.W.2d 10 (1975); Shoberg v. Kel- ly, 1 Wash.App. 673, 463 P.2d 280 (1969); Odum v. Cejas, 510 §.W.2d 218 (Mo.App. 1974): Riedisser v. Nelson, 111 Ariz. 542, 534 P.2d 1052 (1975). [3] The only question remaining is whether the trial judge properly entered a Summary judgment for the petitioner based on an affirmative showing that respondent was without ability to produce expert medi- cal testimony in support of her allegations of negligence. This issue is resolved by our decision in Holl v. Talcott, 191 So.2d 40 (Fla.1966), where we held that a defendant may show the absence of genuine issues of material fact by “showing conclusively that the plaintiff is unable to present requisite proof of the negligence charged in the pleadings.” Id. at 47. Accordingly, the decision of the Third District Court of Appeal is quashed and the order o: the trial court reinstated. It is so ordered. OVERTON, C. J., and BOYD, ENG- LAND and SUNDBERG, JJ., concur. Merritt H. POWELL, Appeliant, v STATE of Florida, Appellee. No. 49087. Supreme Court of Florida. April 7, 1977. Rebearing Denied May 31, 2977. In a prosecution for violation of statute prohibiting reflective or mirrored materials 345 SOUTHERN REPORTER, 2d SERIES on motor vehicle windows, defendant moved to dismiss. The County Court, Or- ange County, Sylvan McElroy, J., denied the motion and defendant appealed. The Supreme Court, Adkins, J., held that the statute does not deny due process or equal protection. Affirmed. 1, Constitutional Law ¢=48(3) Court must, if reasonably possible, con- sistent with protection of constitutional rights, resolve all doubts as to validity of statute in favor of constitutionality and if reasonably possible statute should be con- strued so as not to conflict with Constitu- tion, 2. Constitutional Law ¢=48(1), 70.1(6) Every presumption is to be indulged in favor of validity of statute and case is to be considered in light of principle that state is primarily judge of regulations in interest of public safety and welfare. 3. Constitutional Law ¢>212, 253.1 Federal constitutional inhibitions on deprivation of property without due process or equal protection are not violated by le- gitimate exercise of legislative power in securing health, safety, morals, and general welfare. U.S.C.A.Const. Amend. 14. 4. Automobiles ==6 Constitutional Law ¢=235, 292 Statute prohibiting reflective or mir- rored materials on motor vehicle windows is exercise of police power in promotion of public safety and does not deny due process or equal protection. West’s F.S.A. § 316.- 210{(2Xb, d); U.S.C.A.Const. Amend. 14; West's F.S.A. Const. art. 1, §§ 2, 9. Merritt H. Powell, in pro. per. Robert L. Shevin, Atty. Gen., and Antho- ny J. Golden, Asst. Atty. Gen., for appellee. ADKINS, Justice. This case is before us on direct appeal from an order of the Orange County Court | which denied appel a traffic offense ¢ motion the county the constitutionali Florida Statutes. Article V, Section £ tion. Section 316.210, vides in pertinent | “316.210 Wind: unobstructed, fixe with safety glass “(2\(b) No pers tor vehicle upon road, or street, on is composed of, + with, any materi reflective or mir which has a total applied to automo 35 percent in th “(2Xd) No perso tor vehicle upon road, or street, 01 and side windows of or adjacent to composed of, cover any material whi making these glas: in any way or whi tive or mirrored a solar reflectance, motive glass, grea’ the visible light ré Appellant received Orange County on Ja lation of Section 316 Statutes, in that the rear window of his with reflective mate guilty was entered ! appellant filed a m charges upon the gro in question was unco The motion was denie March 2, 1976, appella of $15.00, plus costs + We have sub judi constitutionality vel ‘Appellant contends th104 Fla. peremptory challenges, was not entitled to ten peremptory challenges after State an- nounced it would seek life imprisonment under Habitual Offender Statute. West's F.S.A. § 775.084(3Xb). John L. Riley, St. Petersburg, for appel- lant. Jim Smith, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tam- pa, for appellee. HOBSON, Acting Chief Judge. Appellant William G. Inmon, Jr. was charged by information with involuntary sexual battery by threatening force against the victim. Prior te trial, the State served notice on appellant that his case had been referred to the Career Criminal Prosecution Program and that if the case proceeded to sentencing the State would “request that the defendant be sentenced pursuant to the Florida Habitual Offender Statute.” Sec- tion 775.084, Florida Statutes (1979)! This notice was based on appellant's prior con- viction for the same offense. At trial, appellant exercised six peremp- tory challenges and attempted a seventh challenge which was objected to by the State on the ground that the charge was not a life felony. Appellant argues that under the Habitual Offender Statute he could be sentenced to life imprisonment and, therefore, should have ten peremptory challenges. The court upheld the State’s objection and appellant was restricted to six peremptory challenges. Appellant argues, inter alia, that where an offense charged is a first-degree felony and the State has announced that it will seek life imprisonment under the Habitual Offender Statute, appellant is entitled to ten peremptory challenges. We are unable to agree with appellant’s argument and af- firm the judgment and sentence entered against him. Section 775.084(3\(b) provides: (b) Written notice shall be served on the defendant and his attorney a suffi- 383 SOUTHERN REPORTER, 2d SERIES cient time prior to the entry of a plea or prior to the imposition of sentence so as to allow the preparation of a submission on behalf of the defendant. (Emphasis ours) We interpret this provision to mean that the State shall serve notice on the defend- ant either before he enters a plea of guilty or nolo contendere, or, in the event he en- ters a plea of not guilty and submits to trial, prior to the imposition of sentence. In the instant case, appellant_was charged with a first-degree felony which entitled him to only six peremptory challenges. u the State had elected to wait until immedi- ately prior to sentencing to notify appellant that he would be sentenced under the Ha- bitual Offender Statute, appellant certainly would have been limited to the six peremp- tory challenges allowed under the original information. The fact that the State chose to notify appellant prior to trial has no effect on this issue. Appellant raises several other issues which we find to be without merit. There- fore, we affirm the judgment and sentence entered against appellant. AFFIRMED. BOARDMAN and CAMPBELL, JJ., con- cur. Florence PERRY, Appellant, v. J. M. LANGSTAFF, M.D. Appellee. Nos. 78-850/T4-93, 78-1092/T4-93A. District Court of Appeal of Florida, Fifth District. April 23, 1980. Rehearing Denied June 4, 1980. Medical malpractice action was brought against urologist. The Circuit Court, Bre- 1. Notice was pursuant to Section 775.084(3\b), Florida Statutes. a 4 vard County, C entered summa urologist, and a trict Court of - physician was right external il remove kidney evidence suppo proposition tha ered artery afte ureter, where that this type + with most car where uncontr that there had sear tissue for surgical procec Affirmed. Sharp, J., Physicians an Physician right external remove kidne evidence supf proposition t] ered artery af ureter, where that this type with most ¢ where uncon’ that there ha sear tissue f surgical proc Arnold R. Ginsberg ant A, Miami, f« John G. } Johnson, Ror for appellee. COBB, Ju In this m: entered a S fendant urc initiated t claimed the the right e{a plea or ence so as submission (Emphasis mean that he defend- a of guilty ent he en- submits to sentence. as charged h entitled - lenges. If il immedi- + appellant ar the Ha- t certainly ‘x peremp- re original ‘tate chose al has no ier issues it, There- d sentence » JJ., con- PERRY v. LANGSTAFF Pla 1105 Cite as, FlnApp., $88 So.2d 1104 vard County, Clarence T. Johnson, Jr., J., entered summary judgment in favor of urologist, and appeal was taken. The Dis- trict Court of Appeal, Cobb, J., held that physician was not negligent in severing right external iliac artery during surgery to remove kidney stones from ureter, despite evidence supporting, at least inferentially, proposition that physician surgically sev- ered artery after identification was made of ureter, where expert testimony indicated that this type of incident is recurrent even with most careful urologic surgeons and where uncontroverted evidence established that there had existed extraordinary case of scar tissue formation resulting from past surgical procedures and disease. Affirmed. Sharp, J., filed a dissenting opinion. Physicians and Surgeons @18.80(3) Physician was not negligent in severing. right external iliac artery during surgery to remove kidney stones from ureter, despite evidence supporting, at least inferentially, proposition that physician surgically sev- ered artery after identification was made of ureter, where expert testimony indicated that this type of incident is recurrent even with most careful urologic surgeons and where uncontroverted evidence established that there had existed extraordinary case of scar tissue formation resulting from past surgical procedures and disease. Arnold R. Ginsberg of Horton, Perse & Ginsberg and Hawkesworth & Schmick, P. A., Miami, for appellant. John G. Rooney of Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Rockledge, for appellee. COBB, Judge. In this malpractice action, the trial court entered a summary judgment for the de- fendant urologist, and timely appeal was initiated to this Court. The plaintiff claimed the defendant negligently severed the right external iliae artery during sur- gery to remove kidney stones from the ur- eter. The evidence viewed most favorably for the plaintiff supports, at least inferentially, the proposition that the defendant surgical- ly severed the artery after identification was made of the ureter. Does this consti- tute actionable negligence based upon a de- parture from the accepted standard of care Prescribed by Section 768.45(1}, Florida Statutes? The appellant asserted at the trial level arid in her appellate brief that it does. At least one expert witness, a vaseu- lar surgeon, Dr. LaRosa, testified in his deposition that this type of incident is re- current even with the most careful urologic surgeons. The defendant testified before the trial court that the artery should not be cut in normal circumstances, but in this case of abnormal scarring he did not admit that cutting the artery was negligence. He did make the statement, “In a normal anatomi- cal decision, you’d have to be an idiot to cut. it.” He denied making such a decision, and the uncontroverted evidence before the trial + court was that this was not a normal ana- tomical situation, but an extraordinary case of sear tissue formation resulting from past surgical procedures and disease. No evi- dence, expert or lay, was presented to the trial court to support the breach of the requisite statutory duty under these facts. Once the movant for summary judgment has met his initial burden of tendering com- petent evidence demonstrating the non-ex- istence of any genuine issue of material fact, the opposing party must come forward with counter-evidence sufficient to reveal a genuine issue. It is not enough to merely assert that a breach of duty existed. See Landers v. Milton, 370 So.2d 368 (Fla.1979); Harvey Building, Inc. v. Haley, 175 So2d 780 (Fla.1965); Farrey v. Bettendorf, 96 So.2d 889 (Fla.1957). Accordingly, the sum- mary judgment entered by the trial court is AFFIRMED. CROSS, J., concurs. SHARP, J., dissents with opinion.saa pO ian renee 1106 Fla. SHARP, Judge, dissenting. This is an appeal from a summary judg- ment in favor of the defendant/doctor in a medical malpractice suit, The trial court relied on Sims v. Helms, 345 So.2d 721 (Fla. 1977), and Thomas v. Berrios, 348 So.2d 905 (Fla. 2d DOA 1977) in granting @ summary judgment. It stated there were nO material jssues of fact because the plaintiff would not be able to provide an expert medical witness to support her claim at trial. The plaintiff argues she should have been al- Jowed to proceed to trial based on the testi- mony of doctors and the parties adduced at the medical mediation procedure and pre- trial discovery. The defendant performed surgery on the plaintiff for removal of a kidney stone from her ureter. Because this was not plaintiff's first surgery of this nature, there was @ great deal of scar tissue, which made identi- fication of the ureter difficult. During the course of the surgery the iliae artery was cut with a scalpel. Defendant's notes made immediately following the surgery state: Dialated ureter was noted and attempts at disection of this down to the level of the stone, a vertical clean defect was made in the right iliac artery. Two months later the defendant added the following notation: - “However, in the course of events, in the dissection of the sear tissue around the ureter, the right ex- ternal iliae vessel was lacerated.” One fair inference from the surgical notes and the defendant's deposition is that the cut in the artery happened after he had located and identified the ureter and the blood vessel peneath it. ‘The medical testimony focused on the difficulty in finding and properly locating the ureter and the artery in a patient who has previously had surgery in the same area, and who has & lot of scar tissue. In such an operation, damage to the artery by nicking or tearing jt is not unlikely or un- usual. But the defendant himself admitted that the artery should not be cut where the vessel has been identified, or at least such was a permissible inference from his testi- mony given at his deposition. 383 SOUTHERN REPORTER, 2d SERIES Under the circumstances of this case, 1 do not think Sims and Thomas are controlling. Both involve medical malpractice suits against doctors who punctured. other organs during the course of performing hysterecto- mies, Apparently punctures of the bladder or damage to the ureter occur sufficiently often, in the process of removing the uter- us