May v. Moore
| Decision Date | 30 December 1982 |
| Parties | Dr. Charles E. MAY v. John A. MOORE, Jr., as Father and Personal Representative of the Infant Child Robert T. Moore, Deceased. 80-671, 80-915. |
| Court | Alabama Supreme Court |
James J. Duffy, Jr. and Carroll H. Sullivan of Inge, Twitty, Duffy & Prince, Mobile, and Edward P. Turner, Jr. of Turner, Onderdonk, Bradley & Kimbrough, Chatom, for appellant.
Roscoe B. Hogan and James R. Pratt, III of Hogan, Smith & Alspaugh, Birmingham, and Joseph C. McCorquodale, III of McCorquodale & McCorquodale, Jackson, for appellee.
These are consolidated appeals by Dr. Charles E. May. In No. 80-671 he challenges the jury verdict and judgment awarding damages against him, in this medical malpractice action, and in favor of John A. Moore, Jr., as father and personal representative of his infant child, Robert T. Moore, deceased. The suit was for damages for the wrongful death of the infant proximately caused by the negligence of Dr. May in treating the infant during and following its birth.
In No. 80-915 he challenges the imposition of sanctions against him by the trial court for his, his representative's and counsel's failure to comply with the orders of the trial court regarding discovery.
We affirm both judgments.
Fannie Moore, mother of the deceased infant, was admitted to Jackson Hospital in Jackson, Alabama, on 17 October 1977 by Dr. Charles May with a diagnosis of pregnancy, last trimester, premature rupture of the fetal membrane, slight cervical bleeding and false labor. She was treated and released but again returned to that hospital on 25 October 1977 at which time she was readmitted with a diagnosis of premature rupture of the fetal membrane and loss of amniotic fluids. Delivery of her infant did not take place for over 48 hours. Immediately prior to delivery Dr. May checked the mother and informed her the baby would be delivered within the hour or the next hour. However, shortly after he left the room, the mother delivered precipitously in her hospital bed without the assistance of any physician and in less than sterile conditions. After delivery, the child stopped breathing and was resuscitated by the anesthetist on duty. Shortly afterwards a nurse came on duty and received a report from that anesthetist that the child had poor muscle tone, was cyanotic around the mouth and nose, was coughing up frothy white mucus which required frequent suction and the infant was making grunting noises on exhalation. The nurse continued to follow the child and noted a continuing bluish tinge around the mouth, a fast rate of respiration, loud grunting noises on exhalation together with substernal retractions. She notified Dr. May of the infant's condition and continued to observe him. The infant showed signs of respiratory distress from birth and on 30 October cardiac pulmonary resuscitation had to be rendered when the infant ceased breathing and its heart quit beating. At that time the attending nurse on duty asked a licensed practical nurse to reach Dr. May by phone which could not be accomplished. Failing that, the police were called to notify him to come to the nursery. He called at around 3:20 a.m. and spoke with the nurse on duty at which time she requested that he come to the hospital. At about 4:00 a.m. he was again notified by telephone of the critical condition of the infant and was again requested to come to the hospital. Sometime shortly thereafter Dr. May arrived at the hospital; however, the attending nurse testified that she did not see him do anything at all for the baby at that time. During the early morning hours of 30 October, at approximately 8:15 a.m., Dr. May ordered the child transferred to the University of South Alabama. The infant's condition continued to deteriorate with seizures, severe respiratory distress, anemia and body rigidity. On arrival of the transfer team from the neonatal center at the University of South Alabama, the infant was in an incubator and its extremeties appeared stiff. The transfer team did a general assessment of the infant's condition and attempted to stabilize it for the return trip to the medical center.
At approximately 2:00 p.m. on 30 October, the child was transferred to the neonatal care center where, according to Dr. Hollis Wiseman, the pediatrician in charge of that center, the baby was critical if not terminal when it arrived. The diagnosis of Dr. Wiseman was sepsis, a generalized bacterial infection in a newborn infant, and probably meningitis, a part of the bacterial infection disease process. He also was of the opinion that the child had central nervous system injury, secondary either to the infection or to the deprivation of oxygen. The infant died at the University of South Alabama Medical Center the next day at some five days of age. In explaining the child's death, Dr. Wiseman testified that it had developed congenital pneumonia as a result of the long period following rupture of the mother's fetal membranes before delivery. The pediatric pathologist who performed the postmortem on this infant agreed with this conclusion and testified that when the fetal membranes rupture there is an escalating incident rate of infection which, after 48 hours, results in an 80 to 90% probability of infection.
In addition to the very high probability of infection resulting from premature rupture of the fetal membrane, the infant exhibited and developed signs of respiratory infection. In his testimony, Dr. May admitted that symptoms of grunting on exhalation, substernal retraction, increased respiratory rate and cyanosis are indications, or manifestations, of respiratory distress in newborn infants. Dr. Wiseman also testified that these symptoms are cardinal manifestations of respiratory distress in newborn infants. In response to these symptoms Dr. May failed to perform any laboratory tests, other than a blood count. Additionally, despite the fact the child showed indications of infection in the central nervous system, no antibiotics were prescribed, but rather than that being done, Dr. May prescribed caffeine sodium benzoate and decadron, as well as a procedure known as hypodermoclysis.
A Birmingham pediatrician and clinical instructor at the University of Alabama Medical School testified that the treatment rendered the infant by Dr. May was totally inappropriate. He also noted that where 48 hours had lapsed from the rupture of the fetal membranes, birth had occurred under less than sterile conditions, respiratory distress had existed for more than two hours, blood cultures, skin cultures, spinal cultures and other tests should have been obtained and antibiotics started immediately. This doctor also testified that the administration of caffeine sodium benzoate is totally inappropriate care for the stimulation of respiration in the primary care setting, as the Jackson Hospital was, and that hypodermoclysis is an antiquated and dangerous practice and should not have been used.
Not only was Dr. May's failure to do any laboratory testing or to prescribe proper medication improper treatment, another physician in the community of Jackson pointed out the availability of the neonatal center at the University of South Alabama only seventy miles from Jackson, Alabama. He explained the availability of consultation services from which the latest information could be obtained immediately. In the opinion of that doctor, Dr. May violated the standard of care in Clarke County when he failed to transfer the child to the neonatal center, or, in the alternative, to do the proper testing and render the proper treatment there at the Jackson Hospital.
Both the Birmingham pediatrician and clinical instructor as well as Dr. Wiseman of the University of South Alabama neonatal care center, testified that the administration of appropriate treatment would have resulted in a better than 50% chance that the infant would live.
Dr. May urges error to reversal consisting of the following acts occurring in the trial of this case:
(1) that the trial court committed error by charging the jury that the defendant physician was held to a national medical neighborhood standard and
(2) the trial court committed error by permitting a Mobile physician, a Birmingham physician, and a Jackson, Alabama, physician to criticize Dr. May's care and treatment of the infant when neither of them testified that he departed from local community standards, and
(3) that the trial court committed error by denying Dr. May's motion for mistrial, when counsel for plaintiff requalified the jury venire on the subject of Dr. May's insurance carrier, and
(4) that the trial court committed error when it denied Dr. May's motion in limine on the subject of a missing hospital record to include the introduction of evidence concerning the medical care of one Joanna King over repeated objections interposed by defense counsel and
(5) that the trial court committed error and otherwise abused its discretion in imposing sanctions and taxing expenses incurred against Dr. May for plaintiff's resistance to the petition for the writ of mandamus in this court to compel the judge to set aside his order imposing sanctions and taxing the expenses and fees against Dr. May.
We will address the alleged errors in the order presented:
WHETHER THE TRIAL COURT COMMITTED ERROR BY CHARGING THE JURY THAT THE DEFENDANT PHYSICIAN IS HELD TO A NATIONAL MEDICAL NEIGHBORHOOD STANDARD.
Before a detailed discussion of this point is undertaken, it is helpful to set out, verbatim, the trial court's oral instructions on this subject in complete context:
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