LePrince v. McLeod

¶1The plaintiffs, in a medical malpractice suit, appeal from a judgment n. o. v. for the defendant-doctor following a jury verdict of $3,050 in favor of the plaintiffs.

¶2The defendant performed a hysterectomy upon Mrs. LePrince and during the course of such operation her left ureters (there were two on the left side) were injured requiring a second operation to correct the condition. The medical testimony did not pinpoint the cause of these damaged ureters 1 but, attributed it variously to: (1) a stitch being passed through them during the operation; (2) being crushed, angulated or kinked by a surgical clamp thereby causing occlusion; (3) becoming degenerated because of a disturbance to the blood supply; (4) swelling or inflammation as a result of the surgery; (5) the operation itself may cause a diminishment in the blood supply to the ureter which would result in an obstruction, causing a fistula.2

¶3Of the five possible causes of the damaged ureters only two could be attributed to any failure to exercise due care during the operation. On the basis of the record before us, it is our opinion that this case is controlled by Lane v. White, Fla.App. 1964, 167 So.2d 14, wherein it was held that the plaintiff’s proof failed because there were several possible causes of the injury, and the evidence did not eliminate the non-negligent causes.

¶4In the instant case, the same is true. The plaintiffs did not establish that the negligent causes were the only possible reasons for the injury. Failing this, it would be inviting the jury to engage in a guessing game to submit the case to them.3 The trial judge was eminently correct in granting the defendant’s motion for judgment n. o. v., and his action is affirmed.

¶5Affirmed.