Historical Perspectives - The First Medical Malpractice Cases In Florida

Brian E. Currie, Esq.
Brian E. Currie, Esq. practices law in Jacksonville with Taylor, Day & Currie. He specializes
in the defense of professional negligence cases against physicians and hospitals.

"In medicine, sins of commission are mortal, sins of omission venial." ¹
- Bulletin of New York Academy of Medicine

When these words were published in 1929, personal injury lawsuits by patients against their physicians were rare indeed. Modernization of medical practice, changes in the structure of the doctor-patient relationship and the evolution of the legal approach to medical injuries utilized by increasingly iconoclastic lawyers changed that forever. Today, every physician reading these words has been touched by medical negligence litigation, if not as a defendant, then as a witness, partner, friend or colleague of a physician who has been sued.

So how did we get to the point where being named in a medical negligence action has become an accepted, even common complication of practicing medicine? What follows is a brief review of the inaugural medical malpractice cases in Florida.²

The earliest reported Florida cases dealing with allegations of physician negligence arose when railroad employees were mistreated by company doctors after being injured on the job. While these cases arose from medical misadventures and bad results, they are more akin to modern negligent credentialing claims than true claims of medical negligence. The first of these lawsuits that resulted in a reported appellate decision arose in Orange County. It is memorialized in the 1893 Florida Supreme Court decision, South Florida Railroad Company v. M.L. Price. In this case, a brakeman sustained an arm injury while attempting to couple together cars of a freight train. Unfortunately for the plaintiff, the train was left in the charge of a stoker who, according to the court, was "utterly unskilled in the art of running a locomotive engine, but who did then and there negligently and unwarrantably try to perform the duties of said engineer ..." The unfortunate brakeman had his arm set by a surgeon employed by the railroad. In the lawsuit that followed, it was alleged that the arm, although entirely healed, was "rendered ill-shaped and forever useless in the performance of manual labor." Although the Plaintiff claimed $20,000 in damages, the trial resulted in a $2,500 verdict. The Supreme Court reversed the judgment and held that the railroad could not be held liable for the carelessness or negligence of its physician in the performance of his duties since the physician was thought to be a "person of ordinary competence and skill in that profession."

W.R. Palmer v. James M. Jackson, Jr, a 1911 Supreme Court decision arising in Dade County, appears to be the earliest reported authentic medical malpractice case in the State of Florida. Unfortunately, the opinion contains no details other than the fact that Mr. Palmer was suing Dr. Jackson "for injuries caused by the Defendant's careless, negligent and unskilled medical treatment of the Plaintiff, whom he had undertaken to treat on June 25, 1906." While it is perhaps fitting that the preeminent malpractice case be traced to South Florida, a hotbed of modern medical negligence litigation, it is ironic that this defendant physician prevailed on a statute of limitations argument, a truly novel occurrence under the current state of the law.

The Florida Supreme Court also rendered its decision in Atlantic Coast Line Railroad Company v. John A. Whitney in 1911. This case arose from an Alachua County claim against a railroad surgeon and the railroad company that employed him. The Plaintiff alleged that the railroad failed to equip its train with an automatic coupling device, which was apparently required at the time.³ The Plaintiff also claimed that the railroad should have known that its physician was incompetent. In an opinion that will make defendant physicians today long for simpler times, the Court emphasized the general reputation of the surgeon and the fact that he was a graduate of a reputable medical school rather than the details of the incident itself:

The case before us demonstrates to our minds the wisdom of adhering to the general reputation, rather than isolated incidences, to bring home to the principal guilty knowledge of incompetence ... [T]he railroad company is not responsible for the negligent work of its surgeon if not negligent in selecting or retaining him, and knowledge of his failings must be brought home to it. His general reputation may be so bad that the law will impute knowledge; but nothing short of this will make it liable.

Mae and J.J. Smith v. J.M. Zeagler is a 1934 appellate decision that arose in Putnam County after a jury verdict in favor of a surgeon, Dr. Zeagler. The claim arose from a retained sponge following a Caesarian section in 1930. Plaintiff's abdomen apparently did not heal, and approximately four months later she was re-explored. This second surgeon, Dr. Jelks, located and removed the sponge "whereupon the patient's health greatly improved."

In 1933, a $5,000 wrongful death verdict rendered against a Jacksonville chiropractor was appealed to the Florida Supreme Court in a case that helped establish what expert testimony is necessary in a claim against a healthcare provider. The Court in this case, C.E. Foster v. L. Elmer Thornton, said in pertinent part:

Where expert evidence is required to prove that what is recognized as a scientific treatment or operation was negligently, carelessly or unskillfully performed, the witness must qualify as having expert knowledge of the correct and proper manner and method of administering the particular treatment which is charged to have been carelessly, negligently or unskillfully performed. . . [T]he unfairness of permitting the test as to whether a particular treatment was proper or skillful to be determined by one who uses a different method or follows the teaching of another system, must be manifest.

And then, in language that could be quoted to the jury in every closing argument, Justice Buford quotes a wise Ohio Judge whose words remind us not to lose sight of the forest for the trees:

A physician is not a warranter of cures. If the maxim, res ipsa loquitur were applicable to a case like this, and a failure to cure were held to be evidence, however slight, of negligence on the part of the physician or surgeon causing the bad result, few would be courageous enough to practice the healing art for they would have to assume financial liability for nearly all the `ills that flesh is heir to'...

The facts of the incident giving rise to the original Foster lawsuit were elaborated on by the Court in a second appeal after the case was remanded for a second trial:

Immediately following the fifth treatment, Mrs. Thornton was seized with severe pain in the head and neck, cried and groaned profusely, became nauseated and vomited, followed by unconsciousness.

Dr. J. G. Lyerly, described by the Court as "a neurologist of high standing," testified for the Plaintiff that there was no possible explanation for the injury except the negligent adjustment given by the defendant chiropractor. The jury awarded $20,670 at the second trial. This was reduced $10,000 by the trial judge.⁴ The final verdict of $10,670 in favor of the patient's family was judicially determined to be "not unreasonable" under the circumstances.

Quaint by modern standards, the Foster Court struck a decidedly pro-medicine theme in gratuitous comments regarding professional negligence claims of the day:

In cases arising from charges of malpractice, the sum of money involved, regardless of its size, is a mere gesture in comparison with the professional character and reputation of the defendant. He should not therefore, be condemned on evidence that does not point conclusively to his negligence.

NOTES

1. Attributed to Theodore Tronchin.
2. To our knowledge, Florida's first physician practiced medicine in this area for nearly a quarter of a century without having his medical decision making second-guessed in a court of law. Of course, the first legal decisions in Florida were not formally reported until nine years after Dr. James Hall died in 1837.
3. An apparent advance in safety rules, too late for the unfortunate brakeman in the Price case.
4. "Remittitur" in legal parlance - another rarity in modern legal experience.

Jacksonville Medicine / March, 2000