Baptist Medical Centers, Baptist Medical Center Montclair v. Trippe

• Decision Date: 01 July 1994
• Citation: 643 So.2d 955
• Parties: BAPTIST MEDICAL CENTERS, BAPTIST MEDICAL CENTER MONTCLAIR v. James L. TRIPPE, Sr., as administrator of the Estate of Nancy Pauline Trippe, deceased. 1920768.
• Court: Alabama Supreme Court

Page 955

643 So.2d 955

BAPTIST MEDICAL CENTERS, BAPTIST MEDICAL CENTER MONTCLAIR v. James L. TRIPPE, Sr., as administrator of the Estate of Nancy Pauline Trippe, deceased.

1920768.

Supreme Court of Alabama.

July 1, 1994.

Charles E. Sharp, Joel A. Williams and Stephanie R. White of Sadler, Sullivan, Herring & Sharp, P.C., Birmingham, for appellant.

G. Whit Drake and Thomas Marshall Powell of Emond & Vines, Birmingham, for appellee.

Sydney Lavender and James C. Barton of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for amicus curiae Alabama Hosp. Ass'n.

PER CURIAM.

Baptist Medical Centers, Baptist Medical Center Montclair appeals from a judgment based on a $1,100,000 jury verdict in favor of James L. Trippe, Sr., as administrator of the estate of Nancy Pauline Trippe. We reverse and remand.

On November 7, 1989, Nancy Trippe was voluntarily admitted to the psychiatric unit of Baptist Medical Center Montclair ("BMC"). She had been diagnosed by her doctor, Dr. David Morrison, as suffering from "bipolar disorder with suicidal thoughts." Upon her admission to BMC, Trippe was searched by one of the nurses; however, the search did not rise to the magnitude of a "strip search." She was required to remove all clothing and put on a hospital gown. It is undisputed that no body cavity search was done. Although Dr. Morrison had reserved a less restrictive room on the psychiatric floor for Trippe, she was transferred to a more restrictive psychiatric wing when she refused to sign a "no suicide contract." Pursuant to Dr. Morrison's orders, a nurse was to personally observe Trippe every 15 minutes and Trippe was to be monitored via video in between these observations. She was to receive individual and group occupational therapy, as well as recreational therapy, and she was also to be treated with antidepressants.

On November 8, Trippe made no suicidal gestures. On November 9, Dr. Morrison doubled Trippe's dosage of the sedative Elavil and, despite the fact that she voiced a "death wish" for Veterans' Day, Trippe visited with her mother for approximately two hours that afternoon. Her mother testified that during the visit Trippe seemed to be in a good mood. After her mother left, Trippe was observed, on the video monitor, standing on her bed and reaching toward the light fixture in her room. As a result of this unusual behavior, she was moved to another room. In her new room, everything was removed except the mattress. The electricity to the sockets in the room was cut off to prevent Trippe from injuring herself.

Once Trippe was placed in the room, the nurse returned to the nurse's station. There, watching the video monitor, she saw Trippe rubbing her wrists with the metal clip on her identification bracelet. Nurses went to her room and Trippe voluntarily relinquished the metal clip to them. Upon returning to their station, however, the nurses noticed on the monitor that Trippe had something in her hands; they immediately returned to Trippe's room and took from her a book of matches and a cigarette. Upon again returning to their station, the nurses observed Trippe lift up her sweater and pull something else out. They went back to the room and saw through the plexiglass that she was holding a gun to her chest. While one of the nurses called for assistance, Trippe shot and killed herself.

Her father, James L. Trippe, Sr., sued BMC and Dr. Morrison, alleging that they had negligently provided medical services to Trippe and that they had breached the standard of care for treatment of psychiatric patients. ¹ Throughout the trial, BMC contended that Trippe had smuggled the gun (a derringer) into BMC by concealing it inside a body cavity. BMC argued that it did not breach the standard of care and that it could not have foreseen that Trippe would conceal such a weapon inside her vagina or rectum. In support of their argument, BMC called expert Lawden Yates, who had examined the gun at the request of the plaintiff. He stated that when he examined the derringer on February 24, 1992, it was noticeably covered with human epithelial cells secreted from a body cavity. Yates further testified that he found no evidence that the gun had been fired or cleaned before he examined it. The gun was returned to the plaintiff's attorneys, and it was given to the defendants' attorneys on March 5, 1992.

The trial court admitted Yates's testimony, but it refused to admit the testimony of BMC's expert Phylis Rolan, who examined the gun on March 16, 1992, after it had been turned over to the defendants by the plaintiff. Rolan's deposition indicates that she would have testified that upon examining the gun she found that it had been cleaned and fired. Rolan said she found no evidence of epithelial cells on the derringer. The trial judge refused to allow Rolan to testify, on the grounds that her testimony would insinuate that the lawyers for the plaintiff had cleaned the gun after their own expert had found evidence that the gun had been concealed in a body cavity. BMC, however, argues that despite whatever conclusions might be drawn from Rolan's testimony, it should have been allowed to introduce Rolan's testimony in an effort to show the jury that the gun that was received into evidence was not in the same condition as when it was examined by Yates.

"The pertinent rule is that articles or objects which relate to or tend to elucidate or explain the issues or form a part of the transaction are admissible in evidence when duly identified and shown to be in substantially the same condition as at the time of the occurrence."

Liberty National Life Insurance Co. v. Weldon, 267 Ala. 171, 100 So.2d 696, 712 (1957).

While this Court can understand the trial court's reluctance to allow opposing counsel to accuse the plaintiff's attorneys of destroying evidence, we conclude that the trial court erred in refusing to allow BMC to offer evidence tending to show that someone unknown to it had cleaned the derringer after it had been examined by Yates but before it was examined by Rolan. The gun was introduced into evidence with no trace of epithelial cells; Trippe invited the jury to inspect the derringer used in the suicide; and Trippe's attorneys urged the jury to refuse to believe that Trippe had smuggled the derringer into the hospital inside a body cavity. Consequently, the jury was entitled to consider Rolan's testimony and draw conclusions therefrom, even if one of those conclusions was that someone had cleaned the derringer between the time Yates examined it and the time Rolan examined it. BMC was clearly entitled to show the jury that the derringer was not in the same condition at the trial as it was when it was when Lawden Yates examined it.

Trippe contends that any error committed in this regard was harmless because, he argues, an expert testified that a strip search should have been done on Nancy Trippe when she checked into the hospital and that such a search would have or should have found the gun. While it is not clear whether a strip search would have located a weapon concealed inside a body cavity, we need not consider whether the error in regard to Rolan's testimony was harmless, because this case must be reversed on yet another ground.

At trial, the following occurred during Trippe's examination of Nurse Goble, a witness for BMC:

"Q. Last night I was thinking over some questions that I forgot to ask you about your strip search policy back in 1989. And as I recall, you told me that it required a doctor's order before you could strip search a patient; is that correct?

"A. Yes. That's with a doctor's order.

"Q. And with respect to Dr. Morrison, you were here yesterday when we read his testimony, and he testified that a physician's order was not required in order to perform a strip search and they would not have needed, and when I say they, the nurses, would not have needed an order to search Nancy. Do you remember that testimony?

"A. Yes, sir.

"Q. You disagree with that testimony, I assume.

"A. That's not according to our policies and procedures.

"Q. Okay. In your opinion as the head nurse of the psychiatric department, and as you were in 1989, the fact that you had a strip search policy that required a physician's order, in your opinion is that the best policy available?

"A. Yes, sir.

"Q. It is?

"A. (Witness nodding head in the affirmative.)

"Q. Ma'am?

"A. Yes, sir.

"PLAINTIFF'S ATTORNEY: Judge, may I approach the bench?

"THE COURT: Yes, sir.

"PLAINTIFF'S ATTORNEY: We may need to go into your office to talk about this.

"THE COURT: All right. Ladies and gentlemen, we're kind of in an unofficial recess. I'm going to take a matter up with the attorneys back in chambers. Just stay within the courtroom or the jury room, and, hopefully, we will be back with everyone in about five minutes.

"(Hearing in Judge's chambers outside the hearing of the jury.)

"THE COURT: All right. You asked her whether in fact now that was a good policy and procedure.

"PLAINTIFF'S ATTORNEY: The procedure available. This was not the subject matter of the defendant's motion in limine. But after this incident they rewrote their strip search policies and required a strip search across the board without a physician's order. They addressed in their motion in limine, simply, the metal detectors issue; but in fairness to them and to the Court, to everybody, I wanted to make sure I brought it up outside the hearing of the jury. But Mrs. Goble has just testified in her opinion the strip search policy that was in effect at Baptist Medical Center Montclair in 1989 was the best policy available. I now believe, Judge, I am entitled to go into that for two reasons, impeach the witness, and number two, to show notice to the witness that there was a different procedure available during this time. She also has testified earlier, I guess, about Hillcrest having a strip search policy mandatory. And I want to ask her since she has now stated that the policy at BMC was the...