Bradford v. McGee By and Through McGee

• Decision Date: 30 September 1988
• Citation: 534 So.2d 1076
• Parties: Dr. Charles R. BRADFORD III v. Bentley Alan McGEE, a minor, who sues by and through his father and next friend, Mark McGEE, et al. Bentley Alan McGEE, a minor, who sues by and through his father and next friend, Mark McGEE, et al. v. Dr. Charles R. BRADFORD III. 87-137, 87-189.
• Court: Alabama Supreme Court

Page 1076

534 So.2d 1076

Dr. Charles R. BRADFORD III v. Bentley Alan McGEE, a minor, who sues by and through his father and next friend, Mark McGEE, et al.

Bentley Alan McGEE, a minor, who sues by and through his father and next friend, Mark McGEE, et al. v. Dr. Charles R. BRADFORD III.

87-137, 87-189.

Supreme Court of Alabama.

Sept. 30, 1988.

Rehearing Denied Nov. 18, 1988.

W. Stancil Starnes, Randal H. Sellers, and Laura Howard Peck, of Starnes & Atchison, Birmingham, for appellant/cross-appellee.

Stephen D. Heninger and S. Greg Burge, of Heninger, Burge and Vargo, Birmingham, for appellees/cross-appellants.

HOUSTON, Justice:

On July 27, 1981, Sandra McGee gave birth by cesarean section to a son, Bentley, who suffers from cerebral palsy. Thereafter, Bentley's parents, Mark and Sandra McGee, brought suit on his behalf against Dr. Charles Bradford, who performed the cesarean section, and Jackson County Hospital, alleging that they negligently departed from the appropriate standard of care and thereby proximately caused Bentley's injuries. At trial, a jury heard testimony from several witnesses, including Dr. Bradford and four experts, and returned a verdict for the McGees, awarding them $950,000 in compensatory damages. Dr. Bradford and Jackson County Hospital moved for J.N.O.V. or, in the alternative, for a new trial. The trial court granted the hospital's J.N.O.V. motion, and Dr. Bradford's new trial motion, but denied Dr. Bradford's J.N.O.V. Dr. Bradford appeals from the denial of his J.N.O.V. motion, and the McGees cross-appeal from the granting of the new trial motion. ¹ For the reasons discussed below, we affirm the rulings on both motions and remand this cause for a new trial as to the claims against Dr. Bradford.

I. New Trial

After hearing testimony from several jurors, the trial court granted Bradford's motion for new trial on the following grounds:

"1. [P]robable prejudice to the defendant caused by jurors making inaccurate answers to questions propounded on voir dire examination.

"2. [P]robable prejudice to the defendant caused by jurors failing to respond to questions propounded on voir dire examination.

"3. [P]rejudice [to] the defendant [due to the court's] failing to sustain timely objection to improper remarks of counsel in closing argument and in failing to give curative instructions."

The trial court considered several instances of jurors' incomplete responses to voir dire questions and one instance of improper remarks during closing as grounds for granting a new trial; we find that at least two of these grounds--namely, Mr. David Woodall's and Mrs. Francis Little's failure to respond to material questions on voir dire--clearly support the trial court's finding of probable prejudice; and, therefore, we affirm.

During voir dire, Bradford's counsel asked the jury venire, including Mr. David Woodall, who became a juror in the case, whether any of them knew members of the Potter or McGee families. (Sandra McGee's maiden name was Potter.) No prospective juror responded to this question. During the hearing to consider the motion for new trial, Mr. Woodall testified that his sister, Alice Potter, is the aunt of Sandra McGee by marriage. He testified that Mrs. Potter had visited the trial at least twice and had had contact with him and his wife one night during the trial. Throughout the trial, Bradford's counsel was not aware of juror Woodall's relationship with Sandra McGee.

Bradford's counsel also asked the jury venire whether any of them had a family member who suffered from a disability. Francis Little, who became a juror, did not respond to this question. During the post-trial hearing, however, Mrs. Little testified that her son had been seriously injured in an automobile accident and had suffered brain damage. Her son had been convalescing at her home prior to the trial. During the trial, she had in her possession photographs of her son's accident; and, on one occasion, she approached plaintiff's counsel to discuss the possibility of filing suit against the driver who had hit her son. Plaintiff's counsel refused to discuss this matter with her during the trial. After the jury returned a verdict, she approached plaintiff's counsel again and asked him to represent her son.

The trial court was in the best possible position to determine whether there was probable prejudice. These two instances of nonresponsiveness on the part of jurors when asked extremely material questions during voir dire constitute a sufficient basis upon which the trial court could have found probable prejudice. Therefore, we hold that the trial court did not abuse its discretion in granting a new trial. Gold Kist, Inc. v. Brown, 495 So.2d 540 (Ala.1986); Ensor v. Wilson, 519 So.2d 1244 (Ala.1988) (Houston, J., concurring specially).

II.

J.N.O.V.

Whether the trial court properly denied Dr. Bradford's J.N.O.V. motion turns on whether the McGees satisfied their burden of producing sufficient evidence setting forth the appropriate standard of care, Dr. Bradford's breach of that standard, and a proximate causal connection between Dr. Bradford's breach and Bentley's injuries. After a careful and complete review of the evidence, using the scintilla rule of evidence, we find that the McGees satisfied their burden of proof. Accordingly, we affirm the trial court's judgment denying the J.N.O.V.

Before examining the record, we delineate the standard of review and the law governing actions brought under the Medical Liability Act.

This action was pending in the courts of this state prior to June 11, 1987; therefore § 12-21-12, Code of Alabama 1975, as amended, does not apply; and the applicable standard of review is as follows:

" 'A motion for directed verdict or J.N.O.V. is tested against the scintilla rule, which requires that a question go to the jury "if the evidence or any reasonable inference arising therefrom, furnishes [so much as] a mere gleam, glimmer, spark, the least particle, the smallest trace, or a scintilla in support of the theory of the complaint." Alabama Power Co. v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975). In reviewing a trial court's ruling on these motions, the appellate court, guided by the standard of the scintilla rule, determines whether there was sufficient evidence below to produce a conflict warranting jury consideration. Baker v. Chastain, 389 So.2d 932 (Ala.1980). Like the trial court, the appellate court must view all the evidence in a light most favorable to the non-moving party. Ritch v. Waldrop, 428 So.2d 1 (Ala.1982).' "

Peete v. Blackwell, 504 So.2d 222, 224 (Ala.1986) (quoting Hammond v. City of Gadsden, 493 So.2d 1374, 1376 (Ala.1986)).

Section 6-5-484, Code of Alabama (1975), as we have construed it, imposes a legal duty upon doctors to exercise the degree of reasonable care, diligence, and skill that reasonably competent physicians in the national medical community would ordinarily exercise when acting in the same or similar circumstances. Keebler v. Winfield Carraway Hospital, 531 So.2d 841 (Ala.1988). To recover damages for an alleged breach of this duty, a plaintiff must produce evidence that establishes 1) the appropriate standard of care, Keebler, supra; Dobbs v. Smith, 514 So.2d 871 (Ala.1987), 2) the doctor's deviation from that standard, Keebler; Dobbs, and 3) a proximate causal connection between the doctor's act or omission constituting the breach and the injury sustained by the plaintiff. Ensor v. Wilson, 519 So.2d 1244 (Ala.1987); Howard v. Mitchell, 492 So.2d 1018 (Ala.1986). To present a jury question, the plaintiff must adduce some evidence indicating that the alleged negligence (the breach of the appropriate standard of care) probably caused the injury. A mere possibility is insufficient. The evidence produced by the plaintiff must have "selective application" to one theory of causation. Howard, supra; Williams v. Bhoopathi, 474 So.2d 690 (Ala.1985).

"What was said in McClinton v. McClinton, 258 Ala. 542, 544-45, 63 So.2d 594, 597 (1952), is appropriate in this case:

" 'Proof which goes no further than to show an injury could have occurred in an alleged way, does not warrant the conclusion that it did so occur, where from the same proof the injury can with equal probability be attributed to some other cause.'

"But a nice discrimination must be exercised in the application of this principle. As a theory of causation, a conjecture is simply an explanation consistent with known facts or conditions, but not deductible from them as a reasonable inference. There may be two or more plausible explanations as to how an event happened or what produced it; yet, if the evidence is without selective application to any one of them, they remain conjectures only." [Emphasis added.]

"(Quoting Southern Ry. Co. v. Dickson, 211 Ala. 481, 486, 100 So. 665, 669 (1924). See, e.g., McKinnon v. Polk, 219 Ala. 167, 168, 121 So. 539, 540 (1929) (a case involving a suit for personal injuries allegedly caused by the negligence of the plaintiff's physician))."

Howard at 1020.

Generally, a plaintiff must establish these prima facie elements by introducing expert testimony. Therrell v. Fonde, 495 So.2d 1046 (Ala.1986); Rosemont, Inc. v. Marshall, 481 So.2d 1126 (Ala.1985). An exception to the general rule requiring expert testimony in medical malpractice suits obtains in cases where the want of skill or lack of care is so apparent as to be within the comprehension of the average layman and thus requires only common knowledge and experience to understand it. Therrell, supra; Rosemont, supra. The medical intricacies implicated in this case required the use of expert testimony. In determining whether the McGees' medical experts provided the necessary scintilla of evidence to present a jury question as to whether Dr. Bradford departed from the applicable standard of care, and whether such a departure proximately caused Bentley's cerebral palsy, we must review the testimony as a...