
    Robert O. POHL, M.D., individually, and Robert O. Pohl, M.D., P.A., a Florida professional corporation, Appellants, v. Allen W. WITCHER, Appellee.
    No. BA-211.
    District Court of Appeal of Florida, First District.
    Aug. 7, 1985.
    
      John R. Saalfield, of Marks, Gray, Con-roy & Gibbs, Jacksonville, for appellants.
    A. August Quesada, Jr., of Wildt, Quesa-da & Walker, P.A., Jacksonville, for appel-lee.
   SHIVERS, Judge.

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

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

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

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

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

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

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

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

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

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

To prevail in a medical malpractice case a plaintiff must establish the following: the standard of care owed by the defendant, the defendant’s breach of the standard of care, and that said breach proximately caused the damages claimed. Gooding v. University Hospital Building, Inc., 445 So.2d 1015 (Fla.1984).

We are concerned with whether appellee Witcher has met his burden of introducing evidence which affords a reasonable basis for the conclusion that the injury more likely than not resulted from the defendant’s negligence and established a jury question of proximate cause. See Gooding v. University Hospital Building, supra, and Beisel v. Lazenby, 444 So.2d 953 (Fla.1984).

There is no argument that Dr. Pohl owed a duty to his patient, Mr. Witcher. Although Drs. Hocker and Scharf testified otherwise, Dr. Binski’s opinion that Dr. Pohl deviated from the accepted standard of care provided sufficient basis to submit that question to the jury.

As to whether Dr. Pohl’s negligence caused Mr. Witcher’s injury, Dr. Binski deposed, in one of his Jacksonville depositions:

Q “All right. Now, in the discharge summary for the hospitalization, I noted you reported there was loss of good articular surface of the head of the talus. What do you mean by that, and of what significance did that have to you?
A “Well, one of the reasons why any type of reconstruction of the injury was impossible was the secondary changes that had occurred to the articular surface. Then, again, this results as a consequence of abnormal or no function in the joint. So, it’s related both to the injury, and it’s related, both to the time period afterwards.
Q “Can you in any manner tell me the degrees to which it’s related to each?
A “Well, generally an injury to the articular surface, if not corrected within about 72 hours, will produce significant changes in articular cartilage. So, the aim of any joint injury is to treat it as quickly as possible to get the optimum result.
Q “Okay. And what type of corrective measures are you referring to within the 72-hour period?
A “Reduction of the fracture and relocation of the joint anatomically and holding it with some sort of internal device or implant such as a screw or pin of some sort to maintain that position.”

On April 22, 1981, Dr. Pohl’s attorney again took Dr. Binski’s deposition, and this time Dr. Binski testified in part:

A “Well, the statement is there, there is no question about that. I assume it was misdiagnosed because the diagnosis of a fracture dislocation at that area was made, it would have meant that surgical treatment was indicated.
Q “All right.
A “This wasn’t done.
A [Sic] “So if I understand you, perhaps you can explain it to me better because I want to be sure it is clear. You are saying that because surgery was not done, there was not a diagnosis of the injury correctly?
A “That’s correct.”
MR. WALKER: Turning to Page 71, Line 6.
Q “From the injury itself or from the way it was diagnosed and treated is really my question.
A “Well, I can’t say what the result would have been even with adequate treatment of the injury or surgical treatment to realign the bone. You could still end up with certain stiffness and degenerative changes. I’d have to say it is a result of the injury.
Q “Would it have resulted in those— in the degree in which it eventually did result?
A “I don’t know.
Q “You don’t know the answer to that one?
“Doctor, in the first part of this deposition when you were responding to Mr. Saalfield’s questions and we got to basically the same point that we are in this report, that is the resultant, what his condition was when he came to you and is now. You were asked by Mr. Saalfield if this condition is one that frequently results from the type history that he presented to you as to the cause of the injury, that was his question. And your answer was that the injury he sustained left untreated, I would assume, would end up with a similar type of problem. Now, that’s getting back to my question a moment ago. Are you saying or did you say then that, did you mean then or are you saying now that as a result of the fact that the — or, as a result of the injury, the dislocation, the fracture not being treated surgically shortly after it occurred, that Mr. Witcher ended up where he is now?
A “Well—
Q “And I’m—
A “The injury he had, untreated, I would have expected it to end up with the problems that he presented with. Properly treated, I’m not sure what the final outcome would be. It certainly could be just as bad, hopefully it would be better.
Q “Doctor, based upon your training and experience if treated, and by that I take it that it would have been the surgical treatment which you recommended and I believe Dr. Hocker and Dr. Scharf, although they disagreed about what they found, also recommended. Isn’t it correct, sir, that within a reasonable medical probability that it would have ended up significantly better?
A “Well, I would expect that there would have been a better result with the surgical treatment.
Q “Okay, sir. Is it possible, and this is what I think that you are having some difficulty with and I can appreciate that, it is possible to differentiate between the result that would have been achieved that way and the result that has been achieved now?
A “I don’t think that we can.”

Here, Dr. Binski appears to be saying that, although he expects that Mr. Witcher would have had a better result with proper treatment, it is not possible to differentiate between the result that would have been achieved if Mr. Witcher had been properly treated by Dr. Pohl and the result that has been achieved by Dr. Binski’s surgery. Dr. Binski, however, testified at another deposition:

A “I wrote a medical report, I believe, to you, February of 1979 which went over my examination and history taking of the patient and my subsequent treatment and what I felt happened to the patient and I indicated as a matter of summary that the patient had sustained an intra-articular shear fracture of the head and neck of the left talus with associated dislocation of the talus and rotational malalignment on the subtalar joint. This was the result of a sudden eversion and pronation injury of the foot while he was sliding into a base playing baseball. The original injury itself was misdiagnosed and the patient was treated for a ligamentous sprain of the ankle and foot. The result was chronic deformity and stiffness of the left foot, with mal-union of the fracture site and persistent dislocation of the talus and rotational locking of the subtalar joint. The chronic pain led to decreased mobility and eventual stiffness in the ankle, secondary to posterior soft tissue cont-racture, especially of the gastroc nemius soleus muscle and Achilles tendon.”

Here, Dr. Binski’s testimony appears to express a direct causal relationship between the deviation from the standard of care by Dr. Pohl and the result which occurred.

The trial court did not err in failing to direct a verdict for Dr. Pohl. Although the record contains competent substantial evidence to the contrary, the record also contains competent substantial evidence that Dr. Pohl, in his treatment of Mr. Witcher, deviated from the standard of care required of orthopedic surgeons. There is also competent substantial evidence in the record from which the jury could find that as a result of Dr. Pohl’s negligence, Mr. Witcher endured pain and suffering from the time proper treatment by Dr. Pohl of Mr. Witcher should have begun until Dr. Binski’s triple arthrodesis operation, for which pain and suffering Mr. Witcher is entitled to compensatory damages.

We find that the jury, by its verdict, concluded that Dr. Pohl in his treatment of Mr. Witcher departed from the standard of care required for orthopedic surgeons. We determine that this, then, has been established.

We find, though, that there is ambiguity or contradiction in Dr. Binski’s testimonies as to whether there is a direct causal relationship between Dr. Pohl’s deviation from the standard of care required for orthopedic surgeons in his treatment of Mr. Witcher and the present condition of Mr. Witcher’s ankle. The jury has never been given the opportunity to resolve the extent of the present condition attributable to Dr. Pohl's negligence. Without a proper resolution of this issue, Dr. Pohl may well have been unjustly held responsible for damages contrary to law. We therefore reverse and vacate the damage award, and remand for a new trial only on damages.

REVERSED and REMANDED.

BOOTH, C.J., concurs.

ZEHMER, J., concurs in part and dissents in part with written opinion.

ZEHMER, Judge,

concurring in part and dissenting in part.

I fully concur in Judge Shivers’ opinion for the majority to the extent that he concludes the trial court did not err in failing to direct a verdict for Dr. Pohl because the record contains sufficient evidence to support the jury’s finding that defendant deviated from standards of care required of orthopedic surgeons in his treatment of plaintiff. I likewise fully concur that there is competent evidence in the record from which the jury could find that as a result of Dr. Pohl’s negligence plaintiff sustained an aggravation to his injuries and pain and suffering for which he is entitled to recover compensatory damages. I disagree, however, that the case should be remanded for a new trial on damages to resolve the relationship between Dr. Pohl’s deviation from the standards of care, i.e., his negligence, and the ultimate condition of Mr. Witcher’s ankle. Rather, I would prefer to affirm the judgment below for failure of the defendant to request an appropriate instruction on apportionment of damages (standard jury instruction 6.2(b)) and failure to properly preserve this issue for review on appeal. Nevertheless, for the reasons hereafter discussed, I join with Judge Shivers in reversing and remanding for a new trial on damages.

The record clearly supports a finding of liability because Dr. Pohl’s negligent treatment aggravated plaintiff’s condition and caused certain damages which plaintiff is entitled to recover; there is no question, therefore, but that this case had to be submitted to the jury for a determination on the amount of damages for which Dr. Pohl should be held liable. Yet no instruction on apportioning responsibility for damages to Dr. Pohl was requested or given, and no argument on appeal questions the manner in which the damages issue was submitted to the jury. In my view, there should have been such an instruction.

Liability for damages was obviously complicated by the fact that plaintiff injured his ankle playing softball and then went to see Dr. Pohl for treatment. Consequently, the negligent treatment by Dr. Pohl which aggravated plaintiff’s existing athletic injury should be deemed in law to be a second injury subject to the rule that where two successive accidental injuries occur and the defendant is responsible only for the second, the burden is on the plaintiff to prove to the extent reasonably possible what portion of the aggravated injury is attributable to each of the two accidents. In such cases, the jury should be instructed to make an apportionment of the plaintiff's condition attributable to the aggravation insofar as it may be reasonably possible to do so and hold the defendant liable only for that portion attributable to him. Only if such apportionment is impossible is the jury authorized to charge the defendant causing the second accidental injury with all damages flowing from the resulting condition attributable to both injuries. Washewich v. LeFave, 248 So.2d 670 (Fla. 4th DCA 1971); Wise v. Carter, 119 So.2d 40 (Fla. 1st DCA 1960); Security Mutual Casualty Co. v. Bleemer, 327 So.2d 885 (Fla. 3d DCA 1976).

These and other Florida decisions on this subject, as well as standard jury instruction 6.2(b), are based on the Supreme Court decision in Hamblen, Inc. v. Owens, 127 Fla. 91, 172 So. 694 (1937). In Washewich v. LeFave, the court stated:

It is a fundamental principle applicable to the law of negligence that where one seeks to recover damages by reason of the negligence of another, the former must not only prove the extent of his injuries, but also that they were proximately caused by the negligence of the latter. (Citation omitted.) This requirement is somewhat relaxed, however, where the evidence indicates that the defendant’s negligence has proximately resulted in an aggravation of a pre-existing injury and the entire consequence cannot reasonably be divided as between several independent causes. In Hamblen, Inc. v. Owens, 1937, 127 Fla. 91, 172 So. 694, 696, the Florida Supreme Court stated: ‘ * * * The defendant must respond in damages for such part of the diseased condition as his negligence has caused and if there can be no apportionment, or it cannot be said that the disease would have existed apart from the injury, then he is responsible for the diseased condition. * * *’

248 So.2d at 672. The court in Waskewich commented on the defendant’s argument that he should be entitled to a directed verdict because the plaintiff’s proof did not show the precise extent to which the defendant’s conduct contributed to the injury and stated:

We disagree with the defendant’s premise. The rule of Hamblen, Inc. v. Owens has as its purpose the prevention of a subsequent wrongdoer from escaping responsibility where his conduct contributed to the creation of the situation in which the problems of apportionment arose. If we are correct in this, it follows that the rule would apply regardless of whose fault caused the first accident.

248 So.2d at 673.

These principles have been applied in medical malpractice actions where a doctor has been sued for negligently treating a traumatic injury caused in a prior accident. E.g., Schwab v. Tolley, 345 So.2d 747 (Fla. 4th DCA 1977); Singleton v. West Volusia Hospital Authority, 442 So.2d 235 (Fla. 5th DCA 1983); Mack v. Garcia, 433 So.2d 17 (Fla. 4th DCA 1983).

In Schwab v. Tolley, the defendant argued that plaintiff Tolley’s evidence failed to show he would have been able to return to gainful employment despite injuries received in the first accident and, therefore, the physician charged with medical malpractice could not be held responsible for that element of damages. The court noted, “It is an absolute certainty in the instant case that, as a result of either the automobile collision or the surgery or both, Dr. Tolley is a permanent quadriplegic who can never practice dentistry again. No one quarrels with this.” 345 So.2d at 750. The court then discussed the testimony of several physicians, some of whom testified that had the operation not been performed by the defendant, Dr. Schwab, there was a distinct possibility that Tolley’s condition could have improved to the point that he could return to his dental practice. Thus, the court noted that the defendant’s argument “would be tenable only if the evidence, construed most favorably for the plaintiffs, established a negative: That Dr. Tolley could not have practiced dentistry again as a result of the collision irrespective of the surgery.” 345 So.2d at 751. The court then held that the issue of apportioning damages was properly submitted to the jury because the physician could be held liable for the whole of the damages if it was impossible for the jury to apportion the condition between the injury caused by the medical malpractice and the injury caused by the original automobile collision.

In Singleton v. West Volusia Hospital Authority, 442 So.2d 235, the trial court directed a verdict for the defendant hospital after close of the plaintiff’s evidence. Reversing, the court stated:

Contrary to defendant’s contention, there was evidence presented from which a jury could conclude that the employees of the defendant hospital could have diagnosed plaintiff's condition on the three occasions when he came there complaining of severe abdominal pains, had he been checked properly. There was also testimony that when plaintiff’s mother called the hospital on a fourth occasion to advise that plaintiff was still experiencing severe pain, she was told not to bring him back. Plaintiff's medical expert testified that under the circumstances, this conduct deviated from the accepted standard of medical care, and that had the proper tests been performed, plaintiff’s appendicitis could have been diagnosed before his appendix ruptured. This evidence is sufficient to show a causal relationship between the alleged negligent acts of defendant and the ultimate aggravation of plaintiff’s medical condition.

442 So.2d at 235.

Mack v. Garcia is much more akin to the facts in the instant case. The plaintiff, Eleanor Mack, fell and broke her wrist. The defendant, Dr. Garcia, diagnosed the fracture and treated it by attempting to align the bones and applying a cast. X rays disclosed that this treatment failed to reduce or align the wrist. Nevertheless, Dr. Garcia did not reset the wrist, but left it cast in a neutral position and told Ms. Mack she would have a slight deformity. Ms. Mack continued to experience swelling and pain and returned to the doctor on several visits. Despite the advice of her husband, friends, and neighbors, she failed to seek the advice of another physician. She sued Dr. Garcia for malpractice and the jury awarded her damages in the amount of $25,000, which were reduced by ninety percent for her failure to mitigate damages, apparently predicated on her failure to seek the advice and treatment of another physician.

At trial, the plaintiff requested a jury instruction on aggravation of an existing injury based on Florida Standard Jury Instruction 6.2(b), which was denied. On appeal, the court held that it was reversible error not to have given the requested instruction because it was clear from the evidence that Dr. Garcia’s treatment of the plaintiff contributed to her injuries and damages. It is interesting to note that the court also held it was reversible error not to strike the defense that plaintiff failed to mitigate her damages because public policy dictates that a patient does not have an obligation or duty to determine whether an injury is being properly treated by a physician.

The reason the instant case presents such a perplexing quandary on appeal is that neither party has addressed the issue of apportionment of liability for damages. Perhaps the plaintiff was satisfied that the evidence was such that no basis for apportionment could be found by a jury and for this reason declined to request standard jury instruction 6.2(b). Defendant, on the other hand, undoubtedly elected to place all his eggs in one basket and go for a directed verdict on the issue of liability based on the principle that plaintiff failed to show that his resulting condition more likely than not resulted from defendant physician’s alleged negligent treatment and, thus, failed to make out a jury question of proximate cause, citing Gooding v. University Hospital Building, Inc., 445 So.2d 1015 (Fla.1984), and Beisel v. Lazenby, 444 So.2d 953 (Fla.1984). Relying on these cases, appellant argues that plaintiff’s evidence failed to establish that the ultimate condition of his ankle injury was any worse because of Dr. Pohl’s treatment than it ultimately would have been had Dr. Pohl properly treated it. In my view, this is a total misapplication of Gooding and Beisel. These two decisions, respectively, involved damage claims for the loss of life and loss of an eye. The court properly held that to prove causation between the asserted negligence and the ultimate loss of life or an eye, the plaintiff was obligated to prove it was more likely than not that the conduct of the defendant was a substantial factor in bringing about the ultimate result and that when the probabilities of such causation are, at best, evenly balanced, it becomes the duty of the court to direct a verdict for the defendant. In the instant case, the trial court ruled the evidence was legally sufficient to show the requisite causation between Dr. Pohl’s negligence and an aggravation of plaintiffs condition giving rise to compensable damages and denied the motion for directed verdict, a ruling which we now affirm. Once that ruling was made by the trial court, the question then became one of apportioning the resulting condition between the negligence of Dr. Pohl and the original injury, if such apportionment was, in fact, possible. I find nothing stated in Gooding or Beisel that suggests any intent to overrule or recede from the Florida decisions dealing with apportionment of damages in medical malpractice cases once the requisite causation of recoverable damage has been established. Neither case discussed the matter of apportionment.

The only point raised by appellant is the failure of the trial court to grant his motion for directed verdict on liability for insufficient evidence of causation. But the trial court, as we have found, did not err in denying that motion. Since appellant raised no other point questioning the failure to apportion damages, appellant failed to properly preserve such issue for appellate review.

Each judge on this panel, however, is concerned that Dr. Pohl be held liable only for the condition of plaintiff’s ankle attributable to his negligent treatment, in accordance with the applicable rules of law. Since the basis for my conclusion is procedural deficiencies rather than the merits of plaintiffs claim, and since the burden is generally on the plaintiff to prove and have the jury instructed on apportioning damages where aggravation of an existing injury is involved (which he failed to do here), I join with the majority in affirming the judgment of liability, vacating the damage award, and remanding for a new trial only on the issue of damages, in accordance with the law relating to apportionment discussed above.  