Brackett v. Coleman
| Decision Date | 06 May 1988 |
| Citation | 525 So.2d 1372 |
| Parties | Deborah L. BRACKETT, administratrix of the Estate of Jesse L. Brackett, deceased, v. Jack T. COLEMAN. 86-541. |
| Court | Alabama Supreme Court |
Christopher E. Peters of Peters & Lockett, and Karen A. Zokoff, Mobile, for appellant.
Champ Lyons, Jr., and John N. Leach, Jr., of Coale, Helmsing, Lyons & Sims, and Lionel C. Williams, Mobile, for appellee.
This is an appeal from a judgment entered on a jury verdict in favor of the defendant in a wrongful death action in which the plaintiff alleged that the defendant had committed medical malpractice that caused the death of her husband. We affirm.
Deborah L. Brackett, Jesse Brackett's widow and the administratrix of his estate, sued Jack T. Coleman, M.D., for his failure to diagnose and treat renal failure and diabetic ketoacidosis when he saw her husband in his office on February 15, 1984. Mrs. Brackett contends that this failure caused Jesse Brackett to experience respiratory and cardiac arrest the next day, which resulted in his death five days later.
Dr. Coleman first examined Mr. Brackett on April 9, 1981, and was aware of his diabetic condition. However, Dr. Coleman testified that Mr. Brackett expressly requested that Dr. Coleman treat his high blood pressure condition, but not his diabetes, because he was under the care of a diabetes specialist. During the next three years, Dr. Coleman treated Mr. Brackett on five occasions.
During the office visit on February 15, 1984, Mr. Brackett informed Dr. Coleman that he had vomited, that he had some swelling in his feet and legs, that he was short of breath while lying down, and that he was generally feeling bad. The office personnel weighed Mr. Brackett and checked his blood pressure. Dr. Coleman then checked for signs of dehydration, including acetone smell on the breath. Dr. Coleman found that Mr. Brackett was well hydrated and had no such smell on his breath. Also, Mr. Brackett had no sign of dry tongue or chronic uremia (frost around the mouth). Dr. Coleman checked for enlargement of the carotid gland and for enlargement of the thyroid; he found enlargement in neither. Dr. Coleman inquired about urinary problems, and found no indication of polyuria (increased urination) or nocturia (nighttime urination). Dr. Coleman felt Mr. Brackett's chest to check for signs of enlargement of the heart; he found none. There was no sign of a heart "thrill" (a rising of the surface of the heart), which would indicate a prior heart attack. He found normal pulses in both arms. Dr. Coleman checked Mr. Brackett's hand to ascertain whether it was dry (indicating diabetic ketoacidosis) or sweaty and cold (indicating hypoglycemia); he found neither condition.
Dr. Coleman also checked for signs of congestive heart failure. In this regard, he raised Mr. Brackett's hands to cardiac levels, checking for collapse of veins, which would indicate congestive heart failure; this finding was negative. Mr. Brackett displayed distended neck veins, which are indicative of congestive heart failure. Dr. Coleman checked for the rate of the heartbeat, because severe congestive heart failure is accompanied by an increased heart rate. Mr. Brackett's heart rate was not increased, nor did he have any arrhythmia of the heart. Dr. Coleman determined from this that any congestive heart failure was probably not severe. Dr. Coleman also checked Mr. Brackett's breathing, listening to the lungs. Dr. Coleman found no blockage and "no wheezing whatsoever." Dr. Coleman also checked for, and did not find, other signs of advanced chronic congestive heart failure, including enlarged liver, tenderness in the abdomen, and signs of an enlarged spleen.
Dr. Coleman then examined Mr. Brackett's legs. Mr. Brackett was suffering from edema, a swelling from fluid buildup. Dr. Coleman found that the temperature of the legs was normal, and that the color was satisfactory, indicating that the major blood vessels were not blocked. He found that the tissue turgor was fine, meaning elastic, not dehydrated as one finds in association with chronic renal failure. Mr. Brackett had gained weight, which Dr. Coleman attributed to the gain in fluid from the edema of the legs. Brackett did not complain of bowel problems, as do patients with renal problems.
After performing the foregoing examinations and making these observations, Dr. Coleman concluded that Mr. Brackett had mild congestive heart failure, hypertensive cardiovascular disease, edema, and a flu- like illness. In accordance with this diagnosis, Dr. Coleman prescribed the following treatment:
1. Dr. Coleman wrote prescriptions for apresazide and minipress, which are blood pressure medicines.
2. Dr. Coleman prescribed ampicillin to ward off infection.
3. Dr. Coleman prescribed dramamine for nausea. He also gave Mr. Brackett an injection of dramamine.
4. Dr. Coleman gave Mr. Brackett an injection of lasix, a diuretic, to help his body rid itself of excess fluid.
5. Dr. Coleman asked Mr. Brackett to return to his office the following day to have his weight checked. Although Mrs. Brackett insists that no such request was made, there was sufficient evidence presented to the jury to support the conclusion that such a request was made.
It is undisputed that Dr. Coleman did not perform a urinalysis or blood sugar test during Mr. Brackett's visit on February 15, 1984. The urinalysis would have detected protein and ketones in the urine, and Dr. Coleman admitted that the blood sugar test is the only way to confirm the amount of sugar in the blood. It is the appellant's contention that the failure to conduct these tests was a departure from reasonable medical care, and that this departure substantially contributed to the death of Mr. Brackett.
WHETHER THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY AS TO THE LEGAL EFFECT OF THE LEARNED TREATISES ADMITTED INTO EVIDENCE.
Two medical treatises were admitted into evidence at the plaintiff's request. These treatises were verified by plaintiff's expert as publications in the medical field that are generally recognized as standard and authoritative works in the diagnosis and treatment of the conditions experienced by Mr. Brackett.
The trial court, in its oral instruction to the jury, made no mention of these treatises or of their legal effect. In initially instructing the jury as to the effect of expert testimony, the trial court failed to indicate that the authoritative treatises admitted into evidence constituted expert evidence. During deliberations, the jury had some questions as to the effect of expert testimony. The trial court reinstructed the jury on this aspect of the case; however, no instruction was given that expert testimony is not limited to the opinions expressed by witnesses, but may also be contained in authoritative treatises admitted into evidence.
After the trial court reconvened following a weekend recess, the jury had no further questions and was sent back to the jury room to continue its deliberations. At this time, the appellant made her first exception to the oral charge failing to instruct the jury that the written treatises admitted into evidence were to be considered expert testimony. The plaintiff concedes that, in response to questions from the jury, the trial court simply recharged the jury as to the credibility of witnesses and the definition and instructions concerning expert witnesses.
Dr. Coleman maintains that the instructions given by the trial court are sufficient in this area. Also, Dr. Coleman asserts that the failure of the appellant to object to the trial court's original charge and her failure to submit written additional or explanatory instructions precludes her right to assign error on appeal.
The trial court's initial charge to the jury included the following instruction:
"In a case of this nature, this standard is established by law and by the expert medical evidence presented for your consideration, including the testimony of physicians called as witnesses."
The inference from this charge is clear. The jurors are to consider all medical evidence, of which the testimony of doctors as witnesses is merely a portion.
As previously noted, at the time the charge was initially given, the appellant made no objection. We find the holding in Johnson v. McMurray, 461 So.2d 775 (Ala.1984), to be dispositive on this issue. Where there is no proper objection to the court's oral charge, this Court is powerless to reverse, even if the appellant's argument is meritorious. Rule 51, Ala.R.Civ.P.
WHETHER THE TRIAL COURT ERRED IN FAILING TO CHARGE THE JURY AS TO THE "SHEER NUMBER" OF WITNESSES.
After the jury had been recharged following the receipt of an inquiry, appellant objected for the first time to the trial court's failure to charge the jury as to the "sheer number" of witnesses. In its additional charge to the jury, the trial court addressed the questions of the jury with regard to the issue of expert testimony, as follows:
The trial court thereupon repeated its oral charge with regard to expert testimony and expert witnesses; the charge contained the following instruction:
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