Bain v. Colbert Cnty. Nw. Ala. Health Care Auth.

• Decision Date: 10 February 2017
• Docket Number: 1150764
• Citation: 233 So.3d 945
• Parties: Melissa BAIN, in her capacity as personal representative of the Estate of Christopher Heath Bain v. COLBERT COUNTY NORTHWEST ALABAMA HEALTH CARE AUTHORITY d/b/a Helen Keller Hospital
• Court: Alabama Supreme Court

233 So.3d 945

Melissa BAIN, in her capacity as personal representative of the Estate of Christopher Heath Bain

v.COLBERT COUNTY NORTHWEST ALABAMA HEALTH CARE AUTHORITY d/b/a Helen Keller Hospital

1150764

Supreme Court of Alabama.

February 10, 2017

Rehearing Denied April 21, 2017

David Marsh, David T. Brown, and Richard Riley of Marsh, Rickard & Bryan, P.C., Birmingham, for appellant.

George E. Knox, Jr., and Jeffrey T. Kelly of Lanier Ford Shaver & Payne P.C., Huntsville, for appellee.

Allen M. Estes of Balch & Bingham, LLP, Birmingham; Sharon D. Stuart of Christian & Small, LLP, Birmingham; and Thomas H. Keene and Philip A. Sellers II of Rushton, Stakely, Johnston & Garrett, PA, Montgomery, for amicus curiae Alabama Defense Lawyers' Association, in support of the appellee.

R. Bernard Harwood, Jr., of Rosen & Harwood, P.A., Tuscaloosa; and Gregg B. Everett of Gilpin Givhan, PC, Montgomery, for amicus curiae Alabama Hospital Association, in support of the appellee.

PER CURIAM.

Melissa Bain ("Bain"), in her capacity as the personal representative of the estate of her deceased husband, Christopher Heath Bain ("Heath"), appeals from a summary judgment in favor of Colbert County Northwest Alabama Health Care Authority d/b/a Helen Keller Hospital ("HKH") on the claims asserted against HKH by Bain. For the reasons set forth herein, we affirm.

I. Facts and Procedural History

Heath, who was 30 years old, began complaining of a "lump" in his throat that would not go away. Heath went to his general practitioner on May 23, 2012, and his doctor recommended that he undergo an endoscopy

. Between May 23 and June 18, 2012, Heath saw several doctors in an attempt to find out what was causing his symptoms, which included increasing pressure near the base of his skull and fatigue. Shortly after midnight on June 18, 2012, Bain took Heath to the emergency room at Helen Keller Hospital ("the hospital") after Heath's symptoms became more severe. Heath's father had died of an aneurysm at the age of 47, and Heath was aware that he might be at an increased risk of having an aneurysm. Heath also had a history of hypertension —high blood pressure —but he had been released by his primary-care physician from taking medication for hypertension several months before his visit to the emergency room.

Heath was first "triaged" by nurses at the hospital. There is no indication in Heath's medical records that the nurses who saw Heath at the emergency room took a comprehensive history, including a family history, from Heath at that time. Dr. Preston Wigfall was the emergency-room physician working at the hospital on the night Heath was taken to the emergency room. Dr. Wigfall evaluated Heath, and his custom was to interview a patient and obtain a medical history when he first saw the patient; Dr. Wigfall did not have a specific recollection of what he asked Heath or what Heath told him about his history, but he did remember taking a history from Heath. Dr. Wigfall did not document any information he learned from taking Heath's history. According to Bain, who was present in Heath's hospital room, Heath and Dr. Wigfall discussed Heath's history of hypertension

and the fact that he had been released from taking his blood-pressure medication. Heath also discussed other relevant parts of his family and medical history with Dr. Wigfall, including that his father had had an aneurysm.

Heath complained of pain and tightness in his chest, "a very uncomfortable level" of pain related to the lump in his throat, back pain, and pressure behind his ears and into his head. Dr. Wigfall ordered certain tests to be run—an X-ray of Heath's chest and soft tissue of the neck, a CT scan of his head

and sinuses, an EKG, and blood tests—but he was unable to determine from the results of those tests the cause of Heath's symptoms. Heath was discharged approximately six hours after his arrival with an "unspecified" diagnosis with instructions to follow up with his primary-care physician. Heath followed up with his doctor as instructed and was referred to another doctor to see if a problem with his gallbladder could be causing his symptoms, and Heath subsequently had his gallbladder removed. On July 8, 2012, approximately 20 days after his visit to the emergency room at the hospital, Heath died when a 45–millimeter ascending aortic aneurysm dissected.

On April 7, 2014, Bain, in her capacity as the personal representative of Heath's estate, filed a medical-malpractice action in the Colbert Circuit Court against HKH and several other defendants.¹ Bain alleged, among other things not pertinent to this appeal, that the emergency-department nurses at the hospital and the emergency-department physician, Dr. Wigfall, breached the applicable standards of care when they treated Heath on June 18, 2012, in the emergency department at the hospital; that Dr. Wigfall, at all relevant times, was acting within the line and scope of his duties and employment as an actual or apparent agent or employee of HKH; and that HKH was vicariously liable for the actions of its nurses and Dr. Wigfall.

On February 16, 2015, HKH moved for a summary judgment on all claims filed against it by Bain. HKH first argued that Dr. Wigfall was an independent contractor, not an employee or agent of HKH, and that there was no evidence to support a contention that Dr. Wigfall was HKH's apparent agent. Specifically, HKH argued that there was no evidence indicating that it had done anything to hold Dr. Wigfall out as its agent, that there was no evidence indicating that Heath was misled into believing that Dr. Wigfall was HKH's agent, and that there was no evidence indicating that Heath sought treatment at the hospital based on that belief.

HKH presented evidence indicating that Dr. Wigfall worked at the hospital as a contract employee for a total of eight days in June 2012, including the night Heath was brought to the emergency room. During the time that he worked at the hospital, Dr. Wigfall was a member of its medical staff, and HKH provided all the forms, supplies, equipment, and personnel that he needed to do his job. Dr. Wigfall had a contract with a staffing agency, Weatherby Locums, Inc. ("Weatherby"), that specialized in providing temporary physicians to hospitals as the hospitals had need, and Weatherby had a contract with HKH to provide physicians to staff the hospital's emergency department. Weatherby gave Dr. Wigfall the option to choose what shifts he would like to cover at the different hospitals to which Weatherby supplied physicians. HKH paid Weatherby for Dr. Wigfall's services, and Weatherby, in turn, paid Dr. Wigfall. Dr. Wigfall received a Form 1099 from Weatherby for tax purposes. Dr. Wigfall had never been an employee of HKH and had never been paid by HKH. Dr. Wigfall testified that HKH did not control the medical decisions he made and that all care and treatment he provided to Heath was based on his own medical judgment.

HKH also argued that it was entitled to summary judgment on Bain's claims against HKH regarding its nursing staff because, it said, Bain could not produce evidence demonstrating that the nurses' breach of the standard of care contributed to cause Heath's death. HKH acknowledged that Bain's nursing expert, Penne Perry, testified that the HKH nurses who cared for Heath when he arrived at the emergency room breached the standard of care by failing to take a comprehensive history from Heath. However, HKH argued that there was no causal link between the alleged breach—the nurses' failure to take a comprehensive history from Heath that would have included information about Heath's father dying from an aneurysm

—and Heath's death. HKH relied on Bain's testimony that she and Heath discussed with Dr. Wigfall the fact that Heath's father had suffered an aortic aneurysm ; Dr. Wigfall's deposition testimony that knowledge of Heath's father's aortic aneurysm would have made no difference in his assessment and evaluation of Heath; and deposition testimony from Dr. Michael Blavias, Bain's emergency-physician expert, indicating that the standard of care required Dr. Wigfall to order a chest CT scan to attempt to rule out an aortic aneurysm or dissection, regardless of whether Dr. Wigfall was aware of Heath's family history.

Bain filed a response and additional evidentiary materials to support her contention that HKH was not entitled to a summary judgment as to either the claim against the emergency-room nurses or the claim that HKH is vicariously liable for the negligence of Dr. Wigfall. Regarding the claim against the emergency-room nurses, Bain argued that, if the nurses had properly taken a detailed family history from Heath, a reasonably prudent emergency-room physician would have known that Heath's father had died of an aneurysm

, that this would have affected a differential diagnosis,² that the proper tests would have been ordered and conducted, that Heath's condition would have been discovered, that surgery would have been performed, and that Heath would have lived. In support of her theory of causation, Bain presented evidence indicating that Heath was suffering from an aneurysm and an aortic dissection when he went to the emergency room on June 18; that obtaining a family history would be important when assessing a patient with Heath's symptoms; that, if an emergency-room physician saw a patient with the symptoms Heath had with knowledge of Heath's family history, the standard of care required the emergency-room physician to order a chest CT with contrast and angiogram ; that a chest CT or a transesophogeal echocardiogram, if ordered and completed at any time after June 18, 2012, would have diagnosed a thoracic aortic aneurysm and dissection; that surgery would have been needed to treat the dissection; and that, if he had received the proper surgery, Heath had a 90% chance of survival.

Bain also argued that HKH was vicariously liable for the acts of Dr. Wigfall under a theory of agency by apparent...