RODRIGUEZ ESTATE OF RODRIGUEZ BOBES v. THE NURSING CENTER AT MERCY (2000)

District Court of Appeal of Florida,Third District.

Helena RODRIGUEZ, on Behalf of the ESTATE OF Elena RODRIGUEZ-BOBES, Appellant, v. THE NURSING CENTER AT MERCY, owned and operated by Egremont Healthcare Associates, a General Partnership consisting of Lenox Healthcare, Inc., a Massachusetts corp., M.K., Inc., an Indiana corp., and Mercy Hospital, Inc., a Florida corporation, Appellees.

No. 3D99-363.

Decided: February 23, 2000

Before JORGENSON, COPE, and LEVY, JJ.

Spiegel & Utrera and Jessica S. Forbes and Julian Sanchez; John J. Spiegel, Miami, for appellant. Sonneborn Rutter Cooney Klingensmith and Mark Klingensmith and William T. Viergever (West Palm Beach), for appellees. Caruso, Burlington, Bohn & Compiani and Philip M. Burlington, West Palm Beach, for The Academy of Florida Trial Lawyers as amicus curiae.

The issue of whether a personal representative can bring an action under Section 400.023 in connection with an infringement of a patient's right that does not lead to the death of the patient is not an issue in this case since the only allegations in the Complaint concerning the infringement of a patient's right relate to a right that the plaintiff/appellant contends led to the patient's death. Accordingly, we need not address that issue. Regarding the medical testimony that the trial court found to be “inadmissable”, thereby causing the trial court to enter a directed verdict, we find that the trial court was incorrect (the medical testimony was admissible, although obviously subject to attack on cross examination), but we find that the medical testimony, including that of the medical examiner who performed the autopsy, was legally insufficient to support the claim. Specifically, it was based on speculation and possibilities based upon what the doctor had been told by various family members. The doctor never examined either the patient while she was alive or the medical records of the patient.

Affirmed.

PER CURIAM.

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