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Donshik v. Sherman9/10/2003
orth in Gooding v. University Hospital Building, Inc., 445 So. 2d 1015 (Fla. 1984). Under Gooding, the appellee was required to show that Sherman's stroke was more likely than not the result of Dr. Donshik's failure to treat him surgically as opposed to medically. Id. at 1020. Dr. Donshik maintains that Sherman cannot meet this standard where, according to the findings of the ACAS report, the difference between Sherman's chances of avoiding a stroke with surgical treatment and his chances of avoiding a stroke with medical treatment alone was statistically insignificant (i.e., 95% v. 89%).
The appellee points out, however, that, notwithstanding the data from the ACAS report, two of its experts independently testified that surgery, more likely than not, would have prevented Sherman's stroke. We find that this evidence satisfied the Gooding standard and created a jury question on the issue of causation. Accordingly, we find no error in the trial court's denial of motion for directed verdict on this issue.
Finally, and alternatively, Dr. Donshik posits that he was entitled to a directed verdict on the issue of actual causation where Sherman's claims were based upon the assumption that Sherman would have agreed to the surgery if it had been recommended to him. We find no merit to this argument. Even if Sherman would have been able to testify as to how he would have proceeded based upon a recommendation for surgery , such testimony would have been inadmissible as conjecture or speculation and violative of the rule established by our supreme court in Drackett Products Co. v. Blue, 152 So. 2d 463, 465 (Fla. 1963):
A statement by a witness as to what action he would have taken if something had occurred which did not occur-particularly in those instances where such testimony is offered for the purpose of supporting a claim for relief or damages-or what course of action a person would have pursued under certain circumstances which the witness says did not exist will ordinarily be rejected as inadmissible and as proving nothing.
See also LeMaster v. Glock, Inc., 610 So. 2d 1336, 1338 (Fla. 1st DCA 1992) ("It has long been the rule that a witness's opinion as to what would have happened if circumstances were different constitutes rank speculation that is not competent evidence[.]"). Thus, for the foregoing reasons, we reverse the final judgment and remand for a new trial consistent with this opinion.
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