Russell v. Harwick

PER CURIAM.

We were asked to take jurisdiction under Article V, Section 4, Florida Constitution, F.S.A., and Rule 4.5, subd. c, F.A.R., 31 F.S.A., to review a decision of the Court of Appeal, Third District, reported as Russell v. Harwich, Fla.App. 1964, 166 So.2d 904. We noted probable jurisdiction on the ground of possible conflict with Baldor v. Rogers¹ and other cases and have heard argument on both jurisdiction and the merits.

With the possible exception of Baldor v. Rogers, supra, we find no conflict in the decision of the District Court of Appeal and the decisions relied upon in the petition for certiorari and petitioner’s brief. The question decided in Baldor went to the propriety of the treatment used by the defendant doctor to treat the plaintiff’s cancer. We stated: “If the treatment used is approved by a ‘respectable minority of the medical profession’ that would relieve the defendant of the charge of malpractice.” That is not the question presented by the case sub judice. Here there was no question that the treatment employed, the use of an Austin Moore prosthesis, was one generally recognized by the medical profession; the basic question was whether it should have been applied without first making further attempts to reduce the fracture by manipulation and nailing. The matter of the propriety of the application of a recognized method is always for the jury and may be established by considering lay testimony as well as expert opinion.² Because of the completely different factual situation presented in Bal-dor, the language used there concerning the “respectable minority” rule is inapposite here. We therefore conclude that conflict sufficient to vest jurisdiction here is absent.

The writ of certiorari heretofore issued is hereby discharged.

THORNAL, C. J., ROBERTS, DREW and O’CONNELL, JJ., and KING, Circuit Judge, concur.

1 . Fla.1954, 81 So.2d 658, 55 A.L.R.2d 453.

2 . Atkins v. Humes, Fla.1959, 110 So.2d 663, 81 A.L.R.26 590; Montgomery v. Stary, Fla.1959, 84 So.2d 34; Foster v. Thornton, 1936, 125 Fla. 699, 170 So. 459.