Baptist Med. Center Montclair v. Whitfield, 1041472.

CourtSupreme Court of Alabama
Writing for the CourtSee
Citation950 So.2d 1121
PartiesBAPTIST MEDICAL CENTER MONTCLAIR v. Barbara T. WHITFIELD, as administratrix of the estate of Thelbert D. Whitfield, deceased.
Decision Date21 April 2006
Docket Number1041472.
950 So.2d 1121
Barbara T. WHITFIELD, as administratrix of the estate of Thelbert D. Whitfield, deceased.
Supreme Court of Alabama.
April 21, 2006.
Rehearing Denied August 11, 2006.

Appeal from the Jefferson Circuit Court, No. CV-02-5264, Houston Brown, J.

[950 So.2d 1122]

Mark W. Lee, Dorothy A. Powell, and James A. Wyatt III of Parsons, Lee & Juliano, P.C., Birmingham, for appellant.

Shay Samples and Bruce J. McKee of Hare, Wynn, Newell & Newton, LLP, Birmingham, for appellee.

[950 So.2d 1123]

SEE, Justice.

Baptist Medical Center Montclair appeals from the trial court's grant of a new trial following the return of a jury verdict in its favor. We affirm.


Dr. Scott Pennington admitted Thelbert Whitfield to Baptist Medical Center Montclair ("BMC"); Thelbert was suffering from gallstones and jaundice. Dr. Pennington is BMC's chairman of general surgery.

On January 15, 2001, Dr. Pennington removed Thelbert's gallbladder. Thelbert was discharged following the procedure, but he experienced problems and was re-hospitalized on January 21, 2001. On January 26, 2001, Dr. Pennington discovered that Thelbert had a leak in his gastrointestinal tract. Upon investigation, Dr. Pennington discovered that Thelbert's bile duct was leaking; Dr. Pennington drained and repaired the leak. On January 29, 2001, Thelbert appeared to have developed an "upper gastrointestinal bleed." Dr. Pennington gave Thelbert an infusion of blood and placed him in BMC's surgical-intensive-care unit. Dr. Leonard Ou-Tim, a gastroenterologist at BMC, performed an endoscopy on Thelbert but was unable to locate the source of the bleed.

Julie Davis, a registered nurse, was Thelbert's primary nurse on January 29, 2001, having begun her shift at 7:00 p.m. At approximately 7:30 p.m., Thelbert experienced a bloody bowel movement while he was lying on his bed. Davis reported the bloody bowel movement to the surgeon on call who, in response, instructed her to infuse Thelbert with two units of blood. At approximately 10:50 p.m., around the time the first unit of blood was fully transfused, Davis evaluated Thelbert and found his condition to be stable. Davis left the room to chart her assessment and order a second unit of blood for Thelbert. Soon after Davis left Thelbert's room, the monitor alarm in Thelbert's room was activated. Davis returned immediately to find that Thelbert had gotten out of his bed unassisted, had pulled out his intravenous tubes, and was sitting on a trash can while experiencing a bloody bowel movement. Davis and another nurse assisted Thelbert back into his bed. As they got him to his bed, Thelbert became unresponsive. Davis called for assistance, and the responding team attempted to resuscitate Thelbert. The resuscitation efforts were unsuccessful; Thelbert died shortly thereafter.

Dr. Kim Parker performed the autopsy on Thelbert. During the autopsy, the source of his gastrointestinal bleed was identified for the first time. Dr. Parker determined that Thelbert suffered from a Dieulafoy's malformation, also known as a Dieulafoy's lesion—a condition in which a lesion in an artery of the gastrointestinal tract causes gastrointestinal bleeding. Dr. Parker concluded from the autopsy that Thelbert had died from a massive gastrointestinal bleed. Dr. Pennington conferred with Dr. Parker shortly after the autopsy was completed and agreed with Dr. Parker's findings. On February 5, 2001, Dr. Pennington signed Thelbert's death certificate, noting "GI hemorrhage due to (or as a consequence of) Dieulafoy's lesion duodenum" as his cause of death.

On August 30, 2002, Barbara Whitfield, Thelbert's wife, as the administratrix and personal representative of Thelbert's estate, sued BMC, Montclair Surgical Associates, P.C. (Dr. Pennington's practice group), and Birmingham Gastroenterology Associates, P.C., asserting claims of negligence relating to Thelbert's death. On March 7, 2005, the day before trial, Whitfield voluntarily dismissed Montclair Surgical Associates, P.C., and Birmingham Gastroenterology Associates, P.C., from

950 So.2d 1124

the action, leaving BMC as the only defendant.

In his opening statement, counsel for BMC implied that Whitfield had agreed to dismiss the charges against Montclair Surgical Associates on the condition that Dr. Pennington change his testimony so that it would be damaging to BMC. BMC's counsel also suggested that Whitfield made the deal because it was easier for the jury to return a large verdict against a corporation like BMC rather than a group of doctors. BMC's counsel stated:

"March 7th, 2005—yesterday—the deal was consummated. [Whitfield] dismissed it. Why would [Whitfield] do that? Why would [Whitfield] do that? Because if [Whitfield] could have some testimony against the nurse, because we're suing a hospital—bricks and mortar. It's easier for you twelve people—thirteen people, I'm sorry—to bring a verdict back against bricks and mortar."

Whitfield's attorney objected to the statement and the trial judge sustained his objection. No curative instruction was requested or given.

The trial court heard from a number of witnesses; however, only Dr. Pennington's testimony is relevant to this appeal. Dr. Pennington testified at trial as a witness for Whitfield. During direct examination, Whitfield's counsel instructed Dr. Pennington to read portions of the transcript of his deposition taken on April 28, 2004. In his deposition, Dr. Pennington opined that Thelbert's death was caused by his getting out of bed unassisted, resulting in a drop in blood pressure and heart rate, which in turn caused a cardiac arrest or arrhythmia from which he could not be resuscitated. At trial, Dr. Pennington testified to the same cause of death. Dr. Pennington also stated at trial that he stood by the theory he had advanced in his deposition as to Thelbert's cause of death. In response to BMC's suggestion during the trial that his opinion as to Thelbert's cause of death changed after he executed Thelbert's death certificate, Dr. Pennington explained that his opinion of Thelbert's cause of death had not changed from the time he executed Whitfield's death certificate to the time of his deposition and then his trial testimony. When Whitfield's counsel asked him to explain why he wrote "GI hemorrhage due to (or as a consequence of) Dieulafoy's lesion duodenum" as the cause of death on Thelbert's death certificate rather than cardiac arrest, Pennington stated:

"I think it's a problem of semantics. In other words, it's a problem of language. What I meant in the death certificate is that indeed the underlying cause of Mr. Whitfield's death was the GI bleed, in the sense that we've talked about. The GI bleed set him up for this scenario, a scenario that unfortunately led to his death. The GI bleed created the low blood pressure, relative hypovolemia, despite his being transfused and despite the fact he was stable in a recumbent position. When he—the best that we can put the picture together, when he got up and sat on the trash can, his blood pressure may have become low, he may have underperfused his coronary arteries and may have had a heart attack. We don't know exactly what happened, but that's the best explanation I have. Now, on the coroner's report that I have to fill out, what I put is the underlying cause of his death. The most proximate cause of his death—and we can quibble about what `proximate' or `immediate' means—would be the GI hemorrhage, because that's what led to everything else. It's like a cascade of events. And the cause of GI hemorrhage, which we only discovered at pathology after autopsy, was the Dieulafoy's

950 So.2d 1125

lesion, the bleeding lesion in the duodenum."

During direct examination of Dr. Pennington, Whitfield's counsel also addressed the remarks by BMC's counsel in his opening statement concerning a deal between Dr. Pennington and Whitfield:

"[Whitfield's counsel]: There has been a direct statement made to these ladies and gentlemen of the jury that we made a deal, we made a deal to either get you to give this testimony or to come to court today. So, sir, let me just ask you straight up: Have we made a deal?

"[Dr. Pennington]: No, sir.

"[Whitfield's counsel]: Has anybody promised you anything to give the deposition, sworn testimony you gave in April 2004?

"[Dr. Pennington]: No, sir.

"[Whitfield's counsel]: Has anybody promised you anything to come to court and give the testimony you gave today?

"[Dr. Pennington]: No, sir."

In closing arguments, BMC's counsel again stated that Whitfield had made a deal with Dr. Pennington pursuant to which the charges against his practice group would be dismissed in exchange for his testimony against BMC because, counsel stated, the jury was more likely to return a large verdict against a corporation like BMC rather than a group of doctors. BMC's counsel made the following statement during his closing argument:

"The deal was made, the deal was done. And the deal was consummated March 7, 2005. You come here, and you just follow that testimony so we can hang this nurse out to dry. And then you'll be dismissed from this case. Do you know why? Let me tell you why. Because it's easier for you folks to bring a verdict back—$7.5 million—against a hospital, a corporation, than it is a doctor. That is why it was done. That, to me, is insulting to you. It's insulting to you, that you would be swayed by that. But that was the deal that was cut in this case. It may be the seedy side of what goes on, but that's what happened."

Whitfield's counsel did not object.

The jury returned a verdict in favor of BMC, and the trial court entered a judgment on the verdict. Whitfield moved for a new trial. After a hearing, the trial court granted Whitfield's motion for a new trial. The trial court stated in its order granting a new trial:

"This Court finds that those arguments presented in [BMC's] closing argument were...

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