Abernathy v. Colbert County Hospital Bd.
| Decision Date | 03 October 1980 |
| Citation | 388 So.2d 1207 |
| Parties | Regina ABERNATHY, a minor who sues by and through her father and next friend, Roy Abernathy v. COLBERT COUNTY HOSPITAL BOARD, a corporation, and Colbert County Hospital. 78-617. |
| Court | Alabama Supreme Court |
Oren R. Lewis, Jr., and Gary R. Sheehan of Lewis, Wilson, Lewis & Jones, Arlington, Va., and B. T. Gardner, Jr., of Stansell, Gardner & Stolsworth, Tuscumbia, for appellant.
Bert P. Taylor of McDaniel, Hall, Parsons & Conerly, Birmingham, for appellees.
This is an appeal from an order denying plaintiff's motion to vacate and set aside a pro-ami consent judgment. We reverse.
The infant-plaintiff, Regina Abernathy, was admitted to Colbert County Hospital suffering from mild dehydration and a common gastric virus. In order to counteract the dehydration, Regina was given intravenous fluids through a blood vessel in her left arm. During the night these fluids infiltrated into the surrounding tissues of her arm. A nurse noticed this condition and made a written statement of the condition in an "incident report." She also reported the condition to the attending physician who told her to continue with the I.V. Soon thereafter Regina's arm became gangrenous and required amputation.
The plaintiff's parents then sought the advice of an attorney who in turn referred them to another attorney who specialized in the area of medical malpractice. Although he made four separate requests for the entire hospital record, he never received the nurse's incident report.
Based upon the information he did receive and consultation with medical experts on the issue of potential liability, the attorney declined the case.
Regina's parents then retained the attorney they had originally consulted. He filed suit through Regina's father and next friend, Roy Abernathy, on the theory that the gangrene had been caused by the tape becoming twisted around Regina's arm and not infiltration by the intravenous fluids.
Two counts were set forth in the complaint against the Hospital and Hospital Board: the first for negligent administration of medical treatment, and the second for breach of an implied contract by the hospital to provide proper medical care. This complaint was subsequently amended by dropping the tort count.
Based upon the hospital record received from the defendant, the plaintiff agreed to settle the case. The hospital's attorney prepared the pro-ami consent judgment and forwarded it to plaintiff's attorney for presentation to the court. This settlement provided that Regina was to receive $11,500 for the loss of her arm. The court entered judgment for this amount.
The validity of this consent judgment was challenged pursuant to Rule 60(b), ARCP, by a motion to vacate. A full hearing was held on this motion. The court entered the following order denying plaintiff's motion:
ORDER ON PLAINTIFF'S MOTION TO VACATE AND TO SET ASIDE PRO-AMI CONSENT JUDGMENT
The above motion of plaintiff was heard by the Court on September 6, 1978, and the parties with their respective attorneys having been present in Court; a duly appointed Guardian ad Litem having been appointed by the Court for plaintiff and appearing and representing plaintiff at said hearing; and the Court having taken evidence in this cause and taken this matter under advisement and the matter now being considered and fully understood and the Court not considering any collateral matters and only considering this matter on its merits, the Court is of the opinion that said motion should be overruled.
The Court is not convinced from the evidence to its reasonable satisfaction that any fraud, actual or constructive, was perpetrated on plaintiff, her next friend, her attorneys, or the Court, and finds that no such fraud was committed; that said "incident report" was not newly discovered evidence that could not have been discovered by reasonable diligence of counsel prior to entry of such judgment and so finds; that, in any event, defendants were cloaked in sovereign immunity on July 19, 1973, the date of the alleged injury, at...
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