Breaux v. Thurston
| Citation | 888 So.2d 1208 |
| Parties | Charles W. BREAUX, M.D., and Jefferson Clinic, P.C. v. Sheila Bailey THURSTON. |
| Decision Date | 30 December 2003 |
| Court | Supreme Court of Alabama |
Randal H. Sellers and Sybil Vogtle Abbot of Starnes & Atchison, LLP, Birmingham, for appellants.
John W. Haley, Shay Samples, and Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham, for appellee. HARWOOD, Justice.
Sheila Bailey Thurston filed a medical-malpractice action against Dr. Charles W. Breaux and Jefferson Clinic, P.C., a professional corporation through which a group of doctors, including Dr. Breaux, provided physicians for the staff of Cooper Green Hospital. The case was originally tried before a jury on October 18, 1999, against Dr. Breaux, the Jefferson Clinic, P.C., Cooper Green Hospital, and two surgical nurses, Cynthia Venton and Wylie King. The jury returned a $78,000 verdict against the defendants, but the trial judge, realizing he had committed an error, subsequently ordered a new trial. The defendants appealed, various ones asserting different objections to the grant of a new trial, either on jurisdictional grounds or because different relief was not granted. This Court affirmed the grant of a new trial. Breaux v. Bailey, 789 So.2d 204 (Ala.2000). When the case was retried on February 19, 2002, only Dr. Breaux and the Jefferson Clinic remained as defendants, Cooper Green Hospital, Venton, and King having settled the claims against them for a total of $100,000. The jury returned a verdict against Dr. Breaux and the Jefferson Clinic in the amount of $300,000. The trial court entered a judgment on the verdict and later denied the defendants' postjudgment motions for a judgment as a matter of law, a new trial, or a remittitur. Dr. Breaux and the Jefferson Clinic again appealed. We reverse and remand.
Ms. Thurston consulted Dr. Breaux in 1994 regarding weight-loss surgery. Dr. Breaux, a board-certified general surgeon and a professor at the University of Alabama at Birmingham, had many years of experience in bariatric surgery, performed to treat obesity. Ms. Thurston had a number of health problems that were compounded by her obesity. She decided to undergo a bariatric procedure known as gastric bypass. When she first consulted Dr. Breaux she weighed 283 pounds. When the bypass surgery was performed at Cooper Green Hospital a little more than eight months later, on December 21, 1994, she weighed 310 pounds. The surgical incision into Ms. Thurston's abdomen, when "opened up" by the use of retractors, created an opening approximately 8 to 10 inches wide and 10 inches long. The ensuing operation lasted two hours or slightly longer. Testimony presented at trial detailed the step-by-step features of the operation, but they are not relevant to the issues on appeal. In essence, the surgery rerouted portions of Ms. Thurston's intestines to shorten the length available for digestion and absorption, significantly reduced the size of her stomach, and reconnected her stomach to the intestine by a small opening. Dr. Breaux was assisted by Dr. Harris,1 a third-year resident at Cooper Green Hospital, registered nurse Cynthia Venton, functioning as the circulating nurse, and Wylie King, functioning as the scrub nurse or operating-room technician. The hospital's "Operating Room Policies and Procedures" provided, with respect to "Instrument Count," that "[t]he purpose of an instrument count is to prevent the possibility of any foreign object being left in a body cavity." With respect to the safeguards to be employed to accomplish that purpose, the Operating Room Policies and Procedures prescribed the following procedure:
No one contends that Venton and King did not perform the required instrument count immediately before Ms. Thurston's surgery. Dr. Breaux testified that when such a preoperative count is performed, he often has not yet entered the operating room and is in some other part of the hospital attending to other duties or patients. It is undisputed that at the end of the operation, but before Dr. Breaux closed the abdominal incision, Venton and King jointly conducted the required postoperative count and reported to Dr. Breaux that it was "correct," meaning that the postoperative count of each category of surgical instruments matched exactly the preoperative count. Dr. Breaux testified that he did not participate in the counts and that "[t]he nurses actually don't want any interference when they are counting, so that they are not distracted and don't lose count of what they are doing." Dr. Breaux further explained that a surgeon does not make any attempt to count the instruments placed in a patient and then removed, because of the need to concentrate on the performance of the surgical procedure. Before receiving the "correct" postoperative count from the nurses, Dr. Breaux visually inspected that portion of the abdominal cavity then viewable through the surgical opening and saw no evidence of a retained object.2 After that initial inspection, Dr. Harris used a handheld retractor to successively elevate various portions of the abdominal wall while Dr. Breaux looked and felt within the four abdominal quadrants thus exposed. In the process of "feeling," he pushed down on the various abdominal structures underneath his hand, while pouring in saline solution to irrigate the space created. "[W]hile I'm pressing, I'm feeling and, of course, I'm feeling on the surface of this mesentery, which is a thick omentum which is a thick layer which overrides everything and if I feel anything, then I can pull things aside and then feel with my finger tips." After looking and feeling within each of the four abdominal quadrants, Dr. Breaux switched from saline solution to antibiotic solution and repeated, in reverse order, the exact procedure of pressing and feeling within each of the four quadrants.
Having completed all of those inspections and having received a "correct" count from Venton and King, Dr. Breaux "closed up," and Ms. Thurston was taken to the recovery room.
Ms. Thurston did well and lost weight. She moved to Nevada. During the late winter of 1996, she started having pain on her left side. She consulted Dr. Lynn Greenhouse, a physician in Nevada specializing in internal medicine. The X-ray films from a barium enema Dr. Greenhouse ordered revealed "right in the middle of the large intestine ... a Babcock-type surgical clamp." Dr. Greenhouse referred Ms. Thurston to Dr. Myron J. Gomez, a general surgeon in Nevada, for removal of the clamp. During that surgery, Dr. Gomez found that the clamp had eroded into the small bowel; he removed the clamp and repaired the bowel. Both Dr. Greenhouse and Dr. Gomez were deposed, and portions of their depositions were read to the jury at trial.
Ms. Thurston testified at trial concerning the various problems she experienced following the clamp-removal surgery, but a discussion of those problems is unnecessary, other than to say there was ample evidence from which the jury could conclude that Ms. Thurston had suffered significant injury.
Neither Dr. Greenhouse nor Dr. Gomez testified during their depositions concerning the medical standard of care that should apply to abdominal surgery.
As amended, the complaint named as defendants not only Dr. Breaux and Jefferson Clinic, but also Cooper Green Hospital, Venton, and King. The claims asserted against Dr. Breaux were that he had negligently or wantonly failed to remove all foreign objects, that he had failed to determine that all foreign objects had been removed before completing the surgical procedure, that he had failed after the surgery to discovery the presence of a retained foreign object, and the he had failed to properly supervise the nurses. The claim against Jefferson Clinic was purely derivative of the claims against Dr. Breaux. Cooper Green Hospital, Venton, and King settled the claims against them for a total of $100,000, and the case proceeded to trial against only Dr. Breaux and Jefferson Clinic. The only testimony presented at trial concerning...
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