PER CURIAM.
Sheila Miller ("Miller"), as administratrix of the estate of George Miller, M.D. ("Dr. Miller"), deceased, appeals from an adverse judgment of the Etowah Circuit Court on Velisa Lynn Bailey's claim of medical negligence regarding the second of two major surgeries Dr. Miller performed on Bailey while she was under his care (case no. 1071624). Bailey appeals from a judgment as a matter of law in favor of Miller on Bailey's claim of wantonness against Dr. Miller arising out of the same surgery (case no. 1071665). In addition, Miller contends that the trial court erred in declining to submit her proposed verdict form to the jury. We affirm the judgment of the trial court as to each matter.
Before Bailey sustained the injuries she contends occurred at the hands of Dr. Miller, she was a registered nurse at Gadsden Regional Medical Center ("Gadsden Regional"). There is no dispute that Bailey suffered from gastroesophagal reflux disease, meaning that gastric juices from her stomach flowed up into her esophagus, causing severe heartburn. In order to alleviate the problem, on September 26, 2000, Dr. Miller, assisted by Dr. Tracy Lowery, performed a laparoscopic Nissen fundoplication ("stomach-wrap surgery") on Bailey at Gadsden Regional.
The day after the surgery Bailey was released from the hospital. Sometime before midnight of that day, however, Bailey awoke suffering from shortness of breath and a "stabbing" pain in her chest. Bailey was readmitted to Gadsden Regional, evaluated by Dr. Miller, provided a shot of Demerol, and discharged. In the early morning of September 29, Bailey again awoke with a sharp pain in her chest and shortness of breath. She was again admitted to Gadsden Regional, but this time her condition deteriorated. Tests revealed that large amounts of fluid were accumulating in her chest and that opacification had occurred in her right chest cavity. On September 30, a pint of fluid was drained from Bailey's chest.
On October 1, 2000, Dr. Miller performed a thoracotomy
Following the surgery, Bailey seemed to improve. The fluid that was drained from her chest became less opaque, and it decreased in volume. She began breathing better on her right side, and, according to his discharge summary, Dr. Miller "felt there was a good chance the leak had been closed." Starting on October 6, however, Bailey started to feel more discomfort. By October 8, she had decreased breath sounds over her right lung and a persistent cough. Chest x-rays taken on October 9 revealed that Bailey again had free fluid in her right chest cavity, and the chest tubes that had been inserted were not satisfactorily draining it. Consequently, Dr. Miller performed another surgery in which he attempted to insert more chest tubes to drain the fluid, but he was unable to do so because Bailey's lung was "tightly" stuck to the chest wall. On October 10, a radiologist inserted a chest tube with the use of CT guidance, and he removed more than one-half pint of fluid.
Despite the presence of the new drainage tube, additional fluid accumulated in Bailey's chest. Because Bailey was not getting better, on October 11, 2000, Dr. Miller decided to transfer her to the care of Dr. Henry Laws at Carraway Methodist Medical Center ("Carraway"). Dr. Miller had been in communication with Dr. Laws for the preceding week concerning Bailey's case because, unlike Dr. Miller, Dr. Laws previously had handled stomach-wrap patients who had sustained stomach perforations.
Upon arriving at Carraway, Bailey was immediately taken to surgery, where another chest tube was inserted in an effort to drain from her chest the fluid that was leaking from her stomach. The next day, Dr. Laws performed another thoracotomy on Bailey in order to scrape inflammatory peel off her right lung. He also inserted a feeding tube to enable Bailey to receive liquid nutrition, as well as two new chest tubes. Following this surgery, Bailey's condition somewhat stabilized, and the second chest tube that had been inserted was removed on October 17.
Bailey remained at Carraway under the care of Dr. Laws for the majority of the next two months. She was discharged twice during that period, but she was forced to return because of persistent nausea. Dr. Laws eventually determined that the nausea was a symptom of withdrawal resulting from her body's becoming addicted to the pain killer Demerol, which had been administered to her during her protracted stays in the hospital.
Swallowing studies periodically administered over this two-month period indicated additional leakage from Bailey's stomach and fluid in her chest. In a patient history dated December 8, 2000, and entered into evidence, Dr. Laws concluded that the leakage of acidic fluid from Bailey's stomach into her chest had eroded pulmonary tissue and had created a gastrobronchial fistula.
Following the December 11, 2000, surgery, Bailey began to recover. The second stomach wrap resolved the acid reflux, and the fistula repair stopped the remaining leakage from her stomach into her chest cavity. As a result of her injuries, Bailey was not able to return to her work as a nurse at Gadsden Regional, and she began receiving Social Security income based on a total disability.
On September 24, 2002, Bailey sued Dr. Miller and Dr. Joseph A. Foster,
On October 11, 2006, a suggestion of death was entered into the record showing that Dr. Miller had died. Bailey filed a motion to appoint Sheila Miller, Dr. Miller's widow, as administrator ad litem, which the trial court subsequently granted. Miller then filed a motion for a partial summary judgment, which the trial court granted only as to a claim not in issue before us.
The case was tried before a jury beginning on May 5, 2008. At the close of Bailey's case and at the close of all the evidence, Miller moved for a judgment as a matter of law on Bailey's negligence and wantonness claims, contending that Bailey had failed to present substantial evidence showing that any act or omission of Dr. Miller proximately caused Bailey's injuries and that Bailey's wantonness claims also were not supported by substantial evidence. Finally, Miller requested that the trial court hold § 6-5-543, Ala.Code 1975, a part of the Alabama Medical Liability Act, constitutional
The trial court entered a judgment as a matter of law in favor of Miller on Bailey's wantonness claims, but denied Miller's motion in all other respects. The trial court also declined to submit Miller's proposed verdict form regarding future damages to the jury. The jury returned a verdict in favor of Bailey and awarded damages in the amount of $2 million. Miller filed a renewed motion for a judgment as matter of law, which the trial court denied.
Miller timely appealed the judgment on Bailey's medical negligence claim. As in the trial court, she contends that there was insufficient evidence of causation as to that claim and that the trial court erred in its ruling related to the constitutionality of § 6-5-543, Ala.Code 1975. Bailey timely appealed the trial court's judgment as a matter of law on her wantonness claim related to the thoracotomy performed by Dr. Miller.
National Ins. Ass'n v. Sockwell, 829 So.2d 111, 125-26 (Ala.2002) (quoting State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293, 302-03 (Ala.1999)).
At the outset, we note that Miller does not dispute that Bailey presented substantial evidence of medical negligence in relation to the stomach-wrap surgery Dr. Miller performed on September 26, 2000. Rather, Miller contends solely that Bailey failed to present substantial evidence that any act or omission by Dr. Miller during the thoracotomy performed on October 1, 2000, caused injuries to Bailey.
Giles v. Brookwood Health Servs., Inc., 5 So.3d 533, 549 (Ala.2008).
Sorrell v. King, 946 So.2d 854, 862 (Ala. 2006).
At trial, Bailey argued that Dr. Miller erred in attempting to repair the perforation in her stomach during the thoracotomy he performed on October 1, 2000, by using sutures because the tissue surrounding the perforation was inflamed and thus, she says, too weak to hold together with sutures. Bailey contended the result was that, instead of healing, the perforation became larger and acidic fluid from Bailey's stomach continued to leak into her chest cavity until Dr. Laws remedied the problem through his course of treatment at Carraway.
Miller contends that Bailey failed to demonstrate that Dr. Miller's actions during the thoracotomy probably caused injuries in addition to those she sustained as a result of the stomach-wrap surgery. Specifically, she argues that the expert testimony elicited by Bailey at trial was insufficient to establish that Bailey sustained injuries as a result of Dr. Miller's suturing of the perforation in Bailey's stomach.
Bailey's primary expert witness on the issue of Dr. Miller's breach of the standard of care during the thoracotomy was Dr. Joseph Colella. In pertinent part, Doctor Colella testified with regard to this second surgery as follows:
Bailey also questioned Dr. Lowery—who had assisted Dr. Miller in the stomach-wrap surgery and who served as an expert for Miller—about the attempt to repair Bailey's stomach perforation with sutures. In pertinent part, Dr. Lowery testified as follows:
Miller's arguments do not correlate with the inferences the jury could draw from the evidence presented at trial. First, Bailey presented substantial evidence through the testimony of Dr. Colella and Dr. Lowery that, if Dr. Miller sutured the perforation with inflamed tissue, he breached the standard of care. She also presented substantial evidence that the tissue Dr. Miller sutured was inflamed. It was undisputed that there was a lot of inflammation in the chest cavity when Dr. Miller performed the thoracotomy: the pleura (the chest cavity surrounding the lungs), the mediastinum (the portion of the chest cavity containing the heart), the chest wall, and the lungs were all inflamed. Indeed, the day before the October 1, 2000, surgery, a pint of fluid had been drained from Bailey's chest. Because the medical records indicated the entire area was inflamed by gastric juices, Dr. Colella surmised that Dr. Miller sutured the stomach perforation together using inflamed tissue, and both he and Dr. Lowery testified that inflamed tissue would not hold together with sutures. Dr. Lowery also testified that, if healthy tissue had been used to support the sutures, "[y]ou would anticipate [the perforation] remaining closed." The evidence indicated that Bailey's condition improved for approximately a week following the October 1, 2000, surgery, but then it began to worsen and fluid once again started draining from her chest. Thus, the evidence supported Dr. Colella's theory that Dr. Miller sutured inflamed tissue in closing the perforation, which held for a brief period but then gave way, resulting in new leakage from Bailey's stomach to her chest cavity.
Dr. Colella testified that sutures placed in inflamed tissue will not hold, and Dr. Lowery confirmed that testimony. Dr. Colella further testified that the fact that the sutures would not hold "basically guarantee[d] ongoing trouble" for Bailey.
Following the October 1, 2000, thoracotomy, Bailey spent over two months in the hospital because additional stomach acid was leaking into her chest cavity and it constantly had to be drained from her body. Bailey testified that, as a result, she suffered from debilitating pain and a persistent cough during her treatment. In addition, Dr. Laws noted that Bailey suffered from bouts of nausea during the two occasions over her two months of treatment at Carraway that she was discharged, a condition that Dr. Laws eventually traced to her body having become addicted to the pain medication being administered during her hospital stays. Dr. Laws also discovered that a further problem had developed—a fistula between Bailey's stomach and her right lung as a result of the damage being inflicted by the stomach fluid. The jury reasonably could have found that all of these conditions constituted injuries Bailey suffered as a direct result of Dr. Miller's negligence in
This Court has stated:
Dixon v. Board of Water & Sewer Comm'rs of Mobile, 865 So.2d 1161, 1166 (Ala.2003). Dr. Colella's theory of causation, which was supported by general statements from Dr. Lowery's testimony, was deducible as a reasonable inference from the known facts and conditions of Bailey's situation. Given that in reviewing Miller's motion for a judgment as a matter of law we are to view the evidence in the light most favorable to Bailey and to entertain such reasonable inferences as the jury would have been free to draw, we conclude that the trial court did not err in finding that Bailey presented substantial evidence that Dr. Miller's actions during the October 1, 2000, thoracotomy caused injuries to Bailey.
Bailey contends that the trial court erred in dismissing her wantonness claim against Dr. Miller regarding his actions during the thoracotomy. Bailey contends that her wantonness claim should have been submitted to the jury because, she says, she presented evidence indicating that the tissue surrounding her stomach was inflamed, that Dr. Miller knew that sutures stitched into inflamed tissue would not hold, and that the failure of such sutures would result in a larger hole in her stomach. She also notes that Dr. Lowery testified that if Dr. Miller had sutured an inflamed area "that would be a gross breach of the standard of care," and that Dr. Colella testified that no "board certified surgeon [could] have reasonably expected that these two sutures ... would hold" if the tissue was inflamed.
Wantonness, however, is "not merely a higher degree of negligence; instead, it is a `qualitatively different tort concept of actionable culpability.'" Cessna Aircraft Co. v. Trzcinski, 682 So.2d 17, 19 (Ala. 1996) (quoting Lynn Strickland Sales & Serv. Inc. v. Aero-Lane Fabricators, Inc., 510 So.2d 142, 145 (Ala.1987)).
Smith v. Roland, 243 Ala. 400, 403, 10 So.2d 367, 369 (1942) (quoting 5 Mayfield's Digest, p. 711, § 6). Our legislature has defined wanton conduct as "[c]onduct which is carried on with a reckless or conscious disregard for the rights or safety of others," § 6-11-20(b)(3), Ala.Code 1975, and, to justify an award of punitive damages, must be proven by "clear and convincing evidence," § 6-11-20(a), Ala.Code 1975. See also § 6-11-20(b)(4), Ala.Code
We cannot conclude that the record before us contains sufficient evidence from which a jury could conclude under the aforesaid statutes that Dr. Miller had engaged in conduct that was "carried on with a reckless or conscious disregard for the rights or safety" of Bailey. Thus, the trial court did not err in entering a judgment as a matter of law in favor of Miller on Bailey's wantonness claim.
On the basis of the forgoing, the trial court's judgment is due to be affirmed in all respects.
1071624—AFFIRMED.
COBB, C.J., and LYONS, WOODALL, SMITH, BOLIN,
STUART and MURDOCK, JJ., dissent.
1071665—AFFIRMED.
COBB, C.J., and LYONS, WOODALL, STUART, SMITH, BOLIN,
MURDOCK, Justice (dissenting in case no. 1071624 and concurring in case no. 1071665).
I respectfully dissent as to the main opinion's affirmance of the judgment on Bailey's medical-negligence claim (case no. 1071624). I concur as to the affirmance by the main opinion of the trial court's judgment as a matter of law on Bailey's wantonness claim (case no. 1071665).
STUART, J., concurs.
