HomeMy WebLinkAbout0063 court quoted from Baron and Holtzoff, Federal practice and
Procedure, Vol. 2, §1A31: - i
- ;..The appellate court, therefore, is power-
less to review the sufficiency of she evi-
deuce to support the verdict if the appellant
made no motion for a directed verdict. The
only exception is where the insufficiency
of the evidence constitutes plain error
apparent on the face of the record which,
if not noticed; will result in a manifest
miscarriage of justice....
161 So.2d at 2a2.
- Here, the evidence showed initial, questionable
treatment by the performance of a closed reduction of a
Alontegg-ia fracture without adequate follow-up X-rays. The
closed reduction was unsuccessful, necessitating an open re-
duction and rod insertion. The doctor adri~tted he measured
the rod incorrectly, and that he was further incorrect in
not taking X-rays. He also admitted he deliberately kept
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these facts out of the hospital records because they were
dariaging. 1~lhen later X-rays showed the rod protruding into
the wrist, further surgery to shorten it was performed alrlost 3
six weeks later. This further surgery, necessitated solely -
- by the doctor's admitted prior errors in treatment, was also
-
G unsuccessful. Finally, the patient went to another doctor
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~ who did still another surgical procedure and corrected all of
the prior medical errors. The patient also visited a lawyer
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who conferred with the latter doctor and with the patient and
reviecaed records and X-rays. Correspondence to the doctor
about the probleM resulted in settlement negotiations with the
doctor's insurance company.
A manifest miscarriage of iustice would occur were
we to hold these facts, as proved by plaintiff, supportive
f -
of an absence of pro5able cause to believe the doctor guilty
of malpractice. It is not necessary for us to find the doctor
was actually guilty of medical malpractice as a matter of law,
however, we do find th?t the evidence vroved the existence of,
rather than the absence of, probable cause. mhe case is
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