Haney v. Mizell Memorial Hosp.

• Citation: 744 F.2d 1467
• Decision Date: 26 October 1984
• Docket Number: No. 83-7315,83-7315
• Parties: , 16 Fed. R. Evid. Serv. 1220 Rickey E. HANEY, Plaintiff-Appellant, v. MIZELL MEMORIAL HOSPITAL, a corporation; Dr. John Meigs, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1467

744 F.2d 1467

40 Fed.R.Serv.2d 338, 16 Fed. R. Evid. Serv. 1220

Rickey E. HANEY, Plaintiff-Appellant, v. MIZELL MEMORIAL HOSPITAL, a corporation; Dr. John Meigs Defendants-Appellees.

No. 83-7315.

United States Court of Appeals Eleventh Circuit.

Oct. 26, 1984.

George E. Day, Donald R. Colpitts, Fort Walton Beach, Fla., for plaintiff-appellant.

Robert E. Parsons, Birmingham, Ala., for Mizell Memorial Hosp.

Robert D. Norman, Robert L. Williams, Marcus W. Lee, Birmingham, Ala., for Dr. John Meigs.

Appeal from the United States District Court for the Middle District of Alabama.

Before FAY and JOHNSON, Circuit Judges, and YOUNG ^*, District Judge.

FAY, Circuit Judge:

This diversity medical malpractice action was brought against Dr. John Meigs and Mizell Memorial Hospital asserting negligence in the diagnosis and treatment of plaintiff Rickey E. Haney, who now is a quadriplegic. The jury which heard this case returned a verdict in favor of the defendants, and the district court entered judgment on April 22, 1983. Haney assigns as reversible error several evidentiary rulings by the district court, allegedly inflammatory and prejudicial remarks made by counsel for the defendants during opening statements to the jury, and he additionally contends that the jury's verdict is not supported by the evidence adduced at trial. Dr. Meigs questions this court's appellate jurisdiction. For the reasons set forth below, we conclude that this court does have jurisdiction to hear this appeal and we affirm.

FACTS

Haney and a friend began drinking beer and whiskey shortly after noon on December 4, 1981, and continued doing so until early the next morning, when they retired for the day. They greeted the following morning with more beer and whiskey in Haney's home, and then visited a few local taverns. The merriment of that Saturday afternoon, however, came to an abrupt halt when the car Haney and two of his companions were occupying ran off a country road and overturned several times.

Haney's friends managed to crawl out of the car, which had come to rest on its right side. Haney, who was hanging out of the driver's door, was lowered by them to the ground. At this time, Haney complained of back pain. His friends rolled him over on the ground to discover the source of the blood they noticed on him.

The emergency medical technician who arrived with the rescue squad strapped Haney to a hard backboard and attempted to immobilize his neck with a technique called "sandbagging." During transport to Mizell In the emergency room, Haney showered profanities on the medical personnel. He also lifted himself off the backboard and looked around, in defiance of orders to the contrary. The nurses who initially examined him believed he was extremely drunk. Their examination of him revealed no neurological problems. In fact, Haney exhibited full range of motion with his arms and legs. Because of his unruliness and apparent inability or unwillingness to communicate to them exactly where he was in pain, the nurses were unable to localize the source of Haney's discomfort.

Memorial Hospital, Haney cursed, struggled to free himself of the straps to the backboard, and tried to sit up, despite warnings that any movement could be dangerous. The technician described Haney as uncooperative and noticed that he smelled of alcohol.

Dr. Meigs, the emergency room physician on duty, next examined Haney. Haney's obstreperousness impeded the doctor's efforts to give him a thorough neurological examination. When asked where he hurt, Haney complained of pain in the neck, then upon further questioning would deny pain there and identify another part of his body, and so on. After extensive interrogation, Dr. Meigs concluded that the source of Haney's pain was an abrasion on the shoulder blade, which was promptly treated. Dr. Meigs also sutured the laceration to Haney's head. Since the doctor was concerned about Haney's level of intoxication and the possibility of a head injury, he admitted Haney for overnight observation. No x-rays were ordered.

Haney was then taken to a ward, and transferred from the emergency room stretcher to a bed. A standard hospital pillow was placed under his head. Shortly thereafter, Dr. Meigs was contacted by a nurse who informed him that Haney was having problems with congestion. The doctor examined Haney, and ordered that he not be given food or fluids to diminish the likelihood of vomiting.

At approximately 10:00 p.m. that evening a nurse noticed that Haney was exhibiting signs of paralysis. The on-call doctor was promptly summoned. He immobilized Haney's neck and ordered that x-rays be taken. Although the x-rays of the cervical spine and thorasic area did not clearly show a fracture, the on-call doctor was concerned about possible spine or spinal cord injury. As a result, Haney was transported to a medical facility in Pensacola, Florida, which was better equipped to handle a neurological patient.

It ultimately was determined that Haney had fractured two cervical vertebrae. Resultant damage to the spinal cord has left Haney a permanent quadriplegic.

Haney brought suit against Dr. Meigs and Mizell Memorial Hospital essentially alleging negligent diagnosis and treatment of him. A jury trial lasted nearly three weeks.

At trial, Haney contended that while the fracture probably occurred during the car accident, the actions of the defendants caused a subluxation of the damaged vertebrae resulting in permanent paralysis. Haney introduced evidence that proper medical procedure would have included prompt x-rays of his neck. Expert witnesses called on his behalf testified that x-rays would have prompted concern over a possible fracture thereby resulting in immobilization of the neck. His experts further testified that immobilization would have diminished the likelihood of permanent paralysis.

The defendants, on the other hand, presented evidence that because of Haney's intoxication, combativeness, and unwillingness to cooperate with medical personnel, it was nearly impossible to properly diagnose him. The defendants' experts also opined that Haney's own movements could have caused the ultimate injury. These witnesses further testified that irrespective of defendants' conduct, the spinal cord damage more likely than not occurred during the car accident, and it was only a question of time before this damage manifested itself in permanent paralysis. The jury returned a verdict for the defendants, and judgment was entered by the district court on April

22, 1983. Haney's notice of appeal was docketed on May 24, 1983.

JURISDICTION

Before we reach the merits of Haney's contentions on appeal, we first must resolve the jurisdiction issue. Our inquiry in this regard is informed by an examination of Fed.R.App.P. 3 ¹ and 4, ² and authorities construing these rules.

A notice of appeal is timely filed if filed with the district court within thirty (30) days following the date of entry of judgment. Fed.R.App.P. 4(a)(1). The law is clear that the timeliness of an appeal is "mandatory and jurisdictional." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982) (quoting Browder v. Director, Department of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560 (1978)); Campbell v. Wainwright, 726 F.2d 702, 703 (11th Cir.1984); Glass v. Seaboard Coast Line Railroad Co., 714 F.2d 1107, 1109 (11th Cir.1983); Fed.R.App.P. 3 advisory committee note. ³ While it is equally clear that actual receipt of the notice of appeal by the district court within the Rule 4 period, even though not formally filed within that period, suffices to confer appellate jurisdiction, see Hatchell v. Heckler, 708 F.2d 578, 579 (11th Cir.1983) (citing Parissi v. Telechron, 349 U.S. 46, 75 S.Ct. 577, 99 L.Ed. 867 (1955) (construing 28 U.S.C. Sec. 2107)); Aldabe v. Aldabe, 616 F.2d 1089, 1091 (9th Cir.1980), simply depositing the notice in the mail is not the same as filing it. Sanchez v. Board of Regents, 625 F.2d 521, 522 (5th Cir.1980), appeal dismissed, 633 F.2d 1210 (5th Cir.1981). ⁴

Applying these principles to this case, there is little doubt that Haney's actual notice of appeal was untimely filed, regardless of when it was mailed, since it apparently was received by the district court beyond the Rule 4 time limit. We nonetheless are constrained to hold that appellate jurisdiction is present in this case. Haney did file with the district court within thirty days after the judgment entry a motion for declaration of pauper status and an affidavit in support of his motion to proceed on appeal in forma pauperis. This court and its predecessor have held that the timely filing of papers such as these which clearly evince the intent to appeal substantially complies with the notice of appeal requirements, and therefore is the equivalent of filing a proper notice of appeal. See Hatchell v. Heckler, 708 F.2d at 580; McDaniel v. Harris, 639 F.2d 1386, 1388 n. 1 (5th Cir.1981). See generally, 9 J. Moore, B. Ward & J. Lucas, Moore's Federal Practice p 203.09 (2d ed. 1983) (general discussion of liberal judicial construction

                of Rule 3(a)). 5   We now proceed to address the substantive issues on appeal
                

RULE 704

Haney first contends that the district court erred when it excluded testimony of Dr. Ronald W. Dennie, one of his expert witnesses. Relying on Fed.R.Evid. 704, Haney urges that reversible error occurred when the district court struck from the videotape deposition of the doctor the following question and answer:

Question [by Haney's counsel]: Now, getting back to this matter of the diagnosis, can you state, in your opinion, whether or not the doctor who made the diagnosis that you've read in this case, can you state, in your opinion, whether or not he was negligent or not, based on what you have read?

Answer [by Dr. Dennie]: Yes, I would feel he was negligent, yes.

Deposition of Ronald W. Dennie, M.D., at 37-38. Dr. Meigs,...