*1 neg- averments of alternative solely on the (3), opinion as (2) listed
ligence precedent reason
and this for those theories inapplicable to
of Courson opin- fully recovery. I concur
ion.
302 So.2d
Beverly Administratrix WADDELL, Stewart, Estate of Bobbie Jo Deceased Coleman, Birmingham, ap- for Ralph E. JORDAN, Individually, and D. Dr. Charles pellant. East Profession- al Association. SC 605.
Supreme Court of Alabama.
Oct. 1974. Gadsden, Pruett,
Inzer, Suttle, Inzer & appellees. *2 appeal from a directed verdict for de- fendants, the evidence must viewed light most plaintiff, favorable to the we and must allow all inferences favorable evidence, which the or a scin- evidence, supports.
tilla of the These rules are so well known as hardly require ci- authority. However, tation see Black- Co., well v. Alabama Power (1963). So.2d 670 Viewing light most plaintiff, favorable to the as we are con- do, appears strained to that after the plaintiff’s intestate awoke sick on the morning 4, 1970, of December daugh- her ter, plaintiff, physi- called her mother’s cian, Jordan, about 8:35 m. at the a.
Baptist Hospital Memorial and related to nauseated, that her mother was hurting in the funny. chest and felt real She told the doctor she was to take her hospital mother to meet him at the room, emergency but directed Dr. Jordan her not bring hospital her mother Defendant, bring but to to his her clinic. did not advise his to ex- clinic pect her, the intestate nor did he meet ex- her, upon amine the, her arrival. He had been intestate’s hy- doctor since 1955 knew she had pertensive cardiovascular disease and dia- Further, betes. he had the intestate prescriptions high pres- two for her blood sure and an oral diabetic tablet for her diabetes. Dr. testified he knew that a with the condition from which the intestate suffered eventu- BLOODWORTH, Justice. ally have a heart attack. His was, viz.: principal appeal issue on this whether the trial court erred in granting any significant She had never had defendant’s motion to exclude the evidence per disease se that would cause directing and in verdict defendants. angina pectoris, or alert me to think she haveWe concluded that the trial court did situation, impending had an heart attack err and therefore reverse and remand this except know this sort of cause for a new trial. thing eventually happen will in that patient.
The rule of our cases is that a case must there is a scintilla history You familiar were plaintiff.1 Moreover, of evidence for the happen? that this could and knew 50(e), retaining 1. See Rule A.R.C.P. the scintilla rule. During part guess you that.” of this say I [Our busy with other emphasis.] patients, other clinic; during at the doctors intestate, accompanied by her hus- death there the time before the intestate’s- daughter, band and her driven imme- no of the doctors had one diately arriving to the clinic about 9:05 a. patients in his There was tes- office. also m., reception- husband advised the *3 timony that in the the doctors clinic “cov- ist that Dr. was to meet them. emergencies ered” for one another in lobby. They in the were told take seats patients in intestate’s condition were patient registered intestate was as The a given priority seeing a doctor. to be slip marked and her admission was in the which she di- While room to was approxi- “Emerg.” After “Nurse-sick.” rected, breathing. the intestate had trouble wait, mately a intestate be- fifteen-minute oxygen Her husband tried to administer bathroom, nauseated and went to the did oxygen her but found the not work. she Intestate’s head was where vomited. intestate, given After the shot to the waiting daughter’s
lying lap in her in the left the nurse the room. intestate breathing. room. had trouble She She the then fell off table onto the floor waiting at 10 more the room least appeared to be rushed dead. being another room minutes before sent to room doc- screaming, from the several nurse, by daughter a after her and husband immediately rushed in and tors and nurses complained delay a number of times unsuccessfully thirty about min- tried being treated in her a doctor. Jor- revive intestate. utes to the nurse, point, reported dan’s at some vomited, was nau- that the intestate had testimony There was from two medical seated, having pain, and that chest the as in- the clinic doctors that such pain radiated down into the left arm. It a doctor soon testate should have seen as shot, prescribed this time was at that he diagnosis possible in order that (In- administered the nurse. which was diagnosis the proved made that if be testate 10 to 20 min- other room .attack, proper heart standard to be a At this given. before shot utes rest, bed (1) treatment and care would time, at point in had been intestate sedation, oxygen, analgesics, (4) (3) (2) to minutes.) clinic at least 30 tes- doctors (5) Jor- EKG. One was, testimony dan’s viz.: the need for oxida- additionally tified tion, enzyme rays, x station. serial symptoms you exactly Do recall “Q Following is a testi- Jordan’s that de- —was Mrs. Tolbert the one point, mony on this viz.: you symptoms you, or told scribed that Mrs. Stewart— thing say All “Q right. You diagnosis? would have be a “A She told me she had vomited least, she was been nauseated and that Yes, “A sir. pain was pain, chest and the having sir, right, who would do this? “Q All into down arm some. left “A Who would? specific type “Q Did that indicate problem, you illness to “Q In the community, who Gadsden complaints? those that, have on December the would done 4th of 1970? Well, might “A be asso- they certainly specific type of illness. ciated with person Whatever doctor went right, type, All sir? to. been in Maybe you heart know.” that have Who would [Our emphasis.] Stewart’s case? fect that the standard of care to me with a obtainable If had come given area was intes-
attack ? tate, and, further, that no other treatment Yes, or medication could have been to in- testate, which would have altered or de- diag- the one who “A I would be ferred a cardiovascular Con- infarction. likely." nosis most [*] [*] [*] [*] [*] [*] sidering plaintiff, this testimony most easily explained favorable if, by the doctor’s on cross-exami- sir, right, and then “Q All —or testifying nation to the effect that he was proper have been the treat- what would done for to what was intestate from has in- person ment for who there, in- time he which was after volvement— testate’s demise. right— “A All r *4 that, se- although Dr. Hawkins testified you she had “Q the time noticed —at rest, etc. pain, analgesics, dation for bed pain? infarct, “would it not stave off a massive rest, primarily —put “A at may prevent a ar- delay or even terminal rest, pain, their at and which relieve rythmia rhythm,” viz.: or abnormal heart for all given. This is standard attacks, all, something of your “Q opinion. In not tell- You are anxiety. to relieve pain, for relief of and anybody gets ing jury that first and foremost all heart That is goes it down a the chest when attacks.” arm, it is these no use to have signed “Q [*] Is to stem a it [*] designed [*] myocardial —is [*] relief of [*] infarction? [*] de- shots, “A that you sir, that said, I doesn’t didn’t sedation say help? that. for relief of stem “A It will no wise at all it “Q helpful? Would have been is going on. one, help it possibly Would to stave off a massive infarct? may. that not one of the But it Is purposes given? my opinion, it would not stave just— tient will “A I don’t know that For One relax, relief and the relaxation purposes of tension so the even giving may. itself pa- it? It normal heart even off and the That prevent massive infarct. Vest, is the was it not? rhythm. terminal purpose arrythmia It may delay the drugs ab- [01] Yes, emphasis.] sir.” —you might help impede [Our fur- know — sort respect. that It is damage ther thing, you indirect know. together, light Taken plaintiff (in most favorable to accord then, “Q Indirectly early adminis- rule), our the medical shows drugs would have been a tration of diagnosis although prompt and treatment procedure in Gadsden standard routine might prevented massive heart have is that correct? attack, delayed or such could even have say would suppose you “A If —I impeded prevented a terminal attack that, emphasis.] yes, sir." [Our This, in our damage further the heart. Hawkins, supplied scintilla of judgment, least a is There negligence and dissenting opinion, to the ef- on the issues of quoted in the 260 ter, plaintiff cause, have the case should her mother’s home.
proximate jury. Plaintiff testified she called Dr. to the been submitted Jor- hospital dan at the told him that malpractice cases “The our rule of “hurting in and that mother was her chest” something must be is there suits funny “she felt real she was nauseat- possibility something more than a mere — ed.” Plaintiff told doctor that she was among others possibility more than one hospital bring complained of negligence —that the to bring he told her to the injury. must cause There meet her and would there. such the effect some evidence injury. Plaintiff father took Mrs. probably caused the Stew- negligence art Bonner, registered to the Clinic. The 105 father Pappa v. 268 Ala. So.2d Polk, at the the re- desk and told Ala. McKinnon v. ceptionist Al- that Dr. meet them not eliminate this does So. 539. But there. A slip for Mrs. filled If there Stewart was rule. abama’s ‘scintilla’ out words “Emerg.” and the and “Nurse scintilla of evidence inju- slip. They sick” were written complained probably caused the Pappa told be seated and presented. wait. ry, question cited.” Bonner, cases there supra, v. About fifteen minutes arriving 202, 224 Shannon, Orange Clinic, sick and had So.2d (1969). to the bathroom. went with *5 They her. She vomited. back to the went taking from the In the case waiting room. The father told them at the exclude, trial the granting the motion to desk that Mrs. Stewart had to court erred to a reversal. room. they After about ten minutes Reversed and remanded. taken emergency room. laid on Mrs. the table in the MERRILL, HEFLIN, J., C. emergency room. Plaintiff later went JONES, JJ., concur. FAULKNER and the desk one or two times and told them help. she wanted some The father went the desk at least also left once and HARWOOD, MADDOX COLEMAN, the emergency room several times. McCALL, JJ., dissent. plaintiff After had something, asked for gave nurse came and Stewart a Mrs. COLEMAN, (dissenting): Justice receiving shot, shot. After the Mrs. Stew- for appeals judgment from a lying Plaintiff art was Plaintiff side. wrongful for death sitting defendants in action in front of her holding and she was “ plaintiff’s the allegedly caused plaintiff’s said, intestate hand. Mrs. T ” furnishing in thing of defendants believe I feel better.’ next in- that happened facilities was that treatment and Mrs. Stewart fell off the testate. table. Plaintiff testified gave the nurse estate Plaintiff is administratrix forty-five “thirty minutes, shot at mother, Mrs.
of her Stewart. least” after Mrs. Stewart arrived trial, deposition prior In a Clinic. taken practicing are Dr. Defendants plaintiff they testified that the time Profes- physician, East Clinic came to told until the doctors , sional Association. plaintiff expired the Stewart had Mrs. ' “ up time '. must sick on the morn- . . been around Mrs. Stewart woke have ” Shortly forty-five the most ing of thereaf- December 1970. minutes.’ table, deposition, In testified that fell off the When he had known Mrs. Stewart since 1955. screaming went out of the room. During one-year period prior to her saw Hawk- person The first she was Dr. death, only she had in had been office him that her mother one ins. told She time January which was in when fallen table and was off the dead. she general checkup. came for a through.” came “running went Dr. Cruit September prior January she had a Thompson. in next and then Dr. complaint pain. back of low a door and Dr. She knocked on history hypertensive cardiovascular dis- running to see Mrs. Stewart. out and went may years; ease for the first time he saw put and Dr. back on the table She the latter of 1954 was for “pumping legs.” at her Hawkins started pneumonia, so it would have been on she plaintiff to leave and Someone asked hypertensive then; first that she visit went outside the door. pneu- first visit he saw her was for father, Stewart, Mr. testified really heart; monia and did not involve her room, emergency while was that she ever had that related breathe, tried hardly and “I Stewart could illness; to her heart was her terminal she put oxygen on her.” Plaintiff tes- pressure high was treated for blood father at- tified that she did not see her angina pecto- never had heart tempt oxygen, and that the mother ; ris he had never done an in the of- EKG the entire emergency she was in the room fice, might hospi- she have had one except on the two occasions when sometime, yes, February tal she had one went out room. 1959; pressure her blood was at that time nothing 180 over there was on the testified that he had “some Mr. Stewart disease; EKG to indicate he did experience oxygen oxygen,” that an read this back Dr. Chan- EKG room, turn tank that he tried to internist, dler, an read it. on, on, spewing it it thing did turn fitting goes out on the filled out the death certifi- around where Stewart; through says cate for : tank, oxygen get he could not *6 it, and anything tighten could not find “ ‘Primary myocardial of cause death— mask. got oxygen to come out the never infarction, hyper- and contribution was oxygen tank “not testified that the was disease, tensive cardiovascular and then plant,” it use in that like ours like we diabetes mellitus’.” same as the one he was was not the plant, that he had never with at the familiar He defined as infarction follows: before, that he worked that kind of tank “ work, it to and that was aft- . . . An get could not area of heart muscle stops er the nurse came with the shot. getting supply, the blood and definition it words, infarcts. In other deposition, In his Dr. testified Jordan supply, loses its blood it dies. That’s day, used that Mr. oxygen that was that what an is.” infarction him Stewart told that Mr. tried Stewart it, problem use that at first there was Dr. testified that Mr. Stewart Jordan oxygen tried 4, with the because Stewart called him on morning Mr. of December it, use hospital; to use it and did not know how to the doctor was in the Mr. problem right straightened that out the Stewart said his having we wife was chest away, pains nauseated; that Mr. Stewart did not render had been and doctor oxygen delay using useless told finishing or cause Mr. Stewart that he was his oxygen agreed connected rounds up and that the was Stewart to meet Mr. office; the Ambu machine which was used at the when Dr. ar- right efforts to revive Mrs. rived at the he went Stewart. work testified, among Dr. other doing Stewart, of sort there as usual was things, as follows: surgical procedure; nurse Mrs. took room Stewart to the he instructed right. anything All Then there of a shot for relief Stewart your judgment, that a nausea, he would competent, qualified general practitioner he turn loose as he could just as soon here in Gadsden have done for was Tal- doing; drug prescribed was attack, of routine giv- usually Phenergan, which are win and 1970, in December of that was Gadsden pain; that was en for relief of not done in this instance under these cir- except on Mrs. time had word he cumstances ? conversation; nurse telephone for the given the she had came back and said he very drugs; within a short having notified that Mrs. Stewart Then, summary, was there any
trouble; just he finished what of treatment of a routine heart element the room where doing and went to normally by compe- attack followed was. physicians tent in December in Gadsden lady did receive that there and Three or four doctors were your judgment or in did she doing took two or three nurses. We turns all receive elements of treatment afford- massage. doc- ventilation and cardiac ed? did” as summary of what we tor read “a
follows: Everything None whatever. done that could be done or could have com- (Reading) came in ‘Patient by anyone.” been done
plaining pain in her chest and left arm. She was above testified: Hawkins continued, and she however then Resusci- suffered cardiac arrest. Doctor, Doctor, ask I’ll —now immediately, measures done tative you, I’ll in the standard of care ask adrenalin, consisting' of intracardiac occasion, in incident of on an ampules times sodium bicar- or not December whether gluconate, ampules. bonate calcium emergency and the others through This was that had been IV Clinic, at the East exer- room started Ambu was used for earlier. The cised as to treat- standard care inserted, airway ventilation particular ment of Mrs. Stewart at cardiomassage and external maintain occasion, time and exempted *7 An heart. called ambulance prudent knowledgea- reasonably patient’s responded. heart However community ble in this at that physician respond, and would not 45 time ? more, pupils minutes or had re- ‘‘A dilated, fixed, definitely. Most and it was deter- mained assisting by all the doctors mined it was to avail. no with resuscitation there, “Q Assuming that she was transported hospital She was not pain, in a complaint of chest nau- any get because never we sea, thirty arm and was there for going.
beat
prior
the shots to
receiving
minutes
“
anxiety
relieve
her of
autopsy was not
‘An
obtained’.”
to,
your pro-
I will ask you
testified
After
treat-
discussion of the standard
opinion,
fact that she
fessional
wait-
shot,
ed
persons
thirty
ment for
as was Mrs.
before
affected
minutes
263
showing
A
an unfortunate
result
ultimate demise
wise affect the
has followed does not of itself shift the
on that occasion ?
proof.
pa-
complainant
burden of
No,
“A
sir.
tient must
negligence.
still show
Moore
Smith,
592,
918;
v.
215
111
Ala.
So.
“Q
not
It would
?
453,
Carraway
Graham, 218
v.
Ala.
118
No,
“A
sir.
So. 807.
Doctor,
“Q
giving
was the
I see.
case,
“Ordinarily,
malpractice
in a
attack, did
prior
the shots
to the actual
proof
proper
not
designed to cure a con-
that shot —was it
treatment,
practice,
procedure,
can
dition or alter a condition ?
only
expert
be established
medical ev-
Allen,
idence.
v.
151
Snow
No,
sir.
expert
In such a case
So. 468.
lack of
primarily
Or
to relieve
proof
results
lack of
pain?
negligence
proof
and such
is essential to
plaintiff’s
establish a
Parrish
case.”
v.
earlier,
“A As I
primarily
stated
it was
263, 266, 267,
Spink, 284
224
Ala.
So.2d
anxiety.
to relieve the
621, 623.
given
It is not
as a curative or as a
requirement
“There is no
of law that a
drug to
something
cure
?
physician should
have been infallible
No,
diagnosis
patient.
of a
and treatment
merely
undertakes to exercise
physicians
surgeons
care and skill as
Doctor,
Now
you
I’ll ask
this.
pursu-
general neighborhood,
same
your opinion, knowing the factual situa-
ing
general
practice,
the same
line of
or-
tion and the condition under Mrs. Stew-
dinarily
in such
In ab-
exercise
cases.
death,
art’s
I’ll ask
whether or not
express agreement,
sence of an
warrant-
your
professional opinion there were
cure,
ing a
does exercise such care
medications or other
an error
or skill he is
liable for
could have been
to Mrs. Stew-
prop-
diagnosis
treatment where the
'
art other than what was received that
pursued of where the
er course was
would have altered or deferred her hav-
subject
to reasonable
proper course is
ing this massive cardiovascular
infarc-
showing
re-
A
of an unfortunate
doubt.
tion?
culpa-
sult
not raise an inference
does
Graham,
bility. Carraway
Ala.
v.
sir.”
Polk,
McKinnon
118 So.
plaintiff rested,
When
Ala.
has under such Stewart Dwight Mfg. when establish Stowers massive infarction it. v. cardiovascular 252, Co., Clinic, the Ala. 80 90.” Watterson she came into and she 202 So. receiv- 182, 183, Conwell, 180, Phernagan v. Ala. 61 ed a shot of 258 Talwin 690, (sic), So.2d 692. to anywhere from five minutes twenty or minutes thirty minutes proof “In this the burden of case Clinic, got shortly she the there- negli on either the show infarction, after had a massive I will ask gence proper knowledge or of want delay, is not the there whether defendants, skill in on the to be called a delay, the she the intes professional their of treatment got there until the shots she tate, proximately the -infec caused which infarction, delay the that would septicaemia—following Rosa Dr. tion — caused, way giv- lack whatever of the injection cocody hypodermic mond’s of the ing shots at deferred mas- that patient’s arm. And late of soda into the sive that cardiovascular infarction is possibility of a result the mere such ? suffered Hoy, 118 not Holtzman sufficient. v. 534, 832, Am.Rep. Ill. 8 59 N.E. No, sir, it would not.” 162, Housekeeper, 16 A. State v. Md. 70 opinion I am of that evidence the fails 587, 382, Am.St.Rep. 340; 2 14 L.R.A. that sustain defendants claim 12, Kramer, 618, 236 85 A. Friend v. Pa. proximate- negligence guilty were of which Smith, Ann.Cas.1914A, Moore 272.” ly caused Mrs. death and that Stewart’s 595, 592, 111 918. So. directing err court did not verdict only medical evi- In the instant case There no for defendants. evidence expert of Dr. by qualified that dence a physician of that record failure evidence The and Dr. Hawkins. diag- drop doing is order guilty fails defendants to show that complaining of nose and treat of Mrs. of negligence in pains chest nausea failure constitutes of any supposed evidence Stewart or that degree of skill to exercise that care and proximately her death. defendants caused com- physicians general same which general line munity pursuing the same argues that shown Plaintiff practice in a ordinarily exercise simi- that knew testimony that lar case. hyper- Mrs. had a cardiovascular years, for a situation number tensive Assignment of Error recites: 7 condition Stewart’s he knew that Mrs. attack eventually could result concluding erred “7. Court situation, any- advise he failed to and that plaintiff was bound the testimo- coming. one at office that she defendant, ny D. Dr. Charles Jor- negligent in says Plaintiff dan, by reading the evidence the into to see defendant, Charles deposition having or in so. another doctor do contrary the code of Ala- D. 7, bama, 1958, recompiled 1940 Title argues find b, 6-A, (4) 474(6). Article Section died from the evidence T. T. T. 287].” [T. delay administering as a result of pain relieving no evidence drugs. There is appears pages following delay supposed caused death. transcript: contrary. Dr. There evidence Hawkins testified further: Judge, “MR. COLEMAN: sir, Now, time we to read right, pur- for the want into All deposition of Dr.
pose question, of this assume that Jordan. *9 jury, given to I please, at to have not dence If Court “MR. INZER: effect to Dr. object the antici- to to want time we this Coleman, different the effect that would of Mr. pated move been if he had his deposi- into to read wants as a defendants. sitting called witness here iswho Defendant tion of the competent evi- question is there is whether a witness. is available in Court and support allegations of the dence is admissi- I think it “THE COURT: evi- that the complaint. I have concluded ble. trial is not Whatever the dence sufficient. respect making may court have said with reading object INZER: We “MR. witness, plaintiff’s if error at entirety. its or in deposition all, not ground is harmless error and Overruled. “THE COURT: Supreme Court Rule 45. reversal under except. INZER: “MR. We it is admissi- HARWOOD, McCALL, think COURT: I
“THE MADDOX and JJ., concur. ble. Yes, sir.
“MR. COLEMAN: is understood INZER: It
“MR. deposition of Dr.
they making the are testimony. their reading is
“THE COURT:
stand, it
is
takes the
Dr. Jordan
then.
making
witness
have —one will party
and another will read answers deposition hereto-
fore this trial.” taken before objection by plain- I
Nowhere do find an by the ruling statement or court
tiff deposition by reading Dr. Jordan’s making Dr. Jordan
witness. deposi- did offer Jordan’s jury. and read It was admitted
tion. sufficiency of evi- considering the