Campbell v. Williams

• Decision Date: 18 February 1994
• Citation: 638 So.2d 804
• Parties: John H. CAMPBELL, M.D. v. Sharlisia Suttle WILLIAMS. 1920826.
• Court: Alabama Supreme Court

Page 804

638 So.2d 804

John H. CAMPBELL, M.D. v. Sharlisia Suttle WILLIAMS.

1920826.

Supreme Court of Alabama.

Feb. 18, 1994.

Rehearing Denied April 8, 1994.

Michael A. Florie, Walter W. Bates, Joseph S. Miller and Scott M. Salter of Starnes & Atchison, Birmingham, for appellant.

Andrew T. Citrin, Michael A. Worel, John T. Crowder, Jr. and David G. Wirtes, Jr. of Cunningham, Bounds, Yance, Crowder and Brown, Mobile, for appellee.

SHORES, Justice.

The defendant doctor appeals from a judgment for the plaintiff entered on a jury verdict in a medical malpractice case seeking damages for the wrongful death of the plaintiff's intestate. The trial court made the following factual findings in its order denying post-judgment relief:

"This case resulted from the death of Plaintiff's deceased, Ms. Willie Mae Sumpter. On March 9, 1987, while Ms. Sumpter was employed at Gulf States Steel in Gadsden, she suffered second and third degree burns about her face. Molten steel had spewed forth from an ingot mold and struck Ms. Sumpter. She was brought to the emergency room of the Holy Name of Jesus Hospital in Gadsden, where she was examined by an emergency room physician who reported her condition to the Defendant Dr. John H. Campbell. Dr. Campbell admitted her to the hospital as his patient. Dr. Campbell treated Ms. Sumpter for her burns and monitored her condition. Within a few hours of her admission, Ms. Sumpter's face had become swollen to the point where her eyes were swollen shut and the inside of her mouth was not accessible to examination. Ms. Sumpter was not intubated or examined by use of a fiber-optic bronchoscope.

"In the early morning of March 10, 1987, Ms. Sumpter began experiencing respiratory distress and suffered respiratory failure due to the closing off of her airway. Following unsuccessful attempts by technicians to regain her airway by intubation, Dr. Campbell, who had been called by the attending nurse, arrived and performed an emergency tracheostomy which restored Ms. Sumpter's airway. However, Ms. Sumpter's respiratory failure resulted in her lapsing into a coma from which she never recovered. Ms. Sumpter died on April 15, 1987.

"The plaintiff's negligence claim against Dr. Campbell involved his failure to transfer Ms. Sumpter to the burn unit at U.A.B. [the hospital of the University of Alabama at Birmingham]; a course of action required by the Holy Name of Jesus Hospital's protocol for the treatment of major burns patients. The plaintiff's additional claim involved Dr. Campbell's failure to protect Ms. Sumpter's airway by intubation or to examine her upper airway by use of a fiber-optic bronchoscope. The Plaintiff further alleged at trial that Dr. Campbell attempted to conceal certain aspects of Ms. Sumpter's condition by requesting another physician to change that physician's notes and also by preparing a summary which detailed events which did not exist.

"Testimony at trial indicated that Dr. Campbell had another physician, Dr. Richard Gallo, change Dr. Gallo's records from a notation that Ms. Sumpter's respiratory failure occurred following a gradual closing of her airway, to a notation which indicated that her respiratory failure occurred suddenly. Dr. Campbell's summary of Ms. Sumpter's treatment included the notation that Ms. Sumpter had experienced a sudden coughing spell just before her respiratory failure and that he felt that she suffered airway blockage due to the presence of a mucous plug. The nurse who was with Ms. Sumpter when she began to experience respiratory distress, testified that there was no coughing spell.

"Upon Ms. Sumpter's respiratory distress, described as 'crowing' or fighting for breath, the attending nurse, Carol Fragnoli, contacted Dr. Campbell by telephone and Dr. Campbell ordered an immediate intubation. Attempts at intubation failed due to Ms. Sumpter's swelling and when this was reported to Dr. Campbell, he ordered nurse Fragnoli to send out an emergency code for any physician in the hospital to come and perform an emergency tracheostomy. In response to the emergency code, nurse Fragnoli testified that Dr. [Wilfredo Grana] came from the hospital's emergency room and was advised of Dr. Campbell's order for a tracheostomy, whereupon, according to nurse Fragnoli, Dr. Grana stated that he was not capable of performing a tracheostomy. Dr. Campbell, who had been en route to the hospital as soon as he was contacted, then entered Ms. Sumpter's room and performed the tracheostomy. Dr. Grana was added as a Defendant based upon his alleged involvement.

"Dr. Campbell denied any negligence in his treatment of Ms. Sumpter. Specifically, Dr. Campbell testified that based upon the emergency room examination as reported to him, there was no need to transfer Ms. Sumpter to U.A.B. He further testified that he had successfully treated many burn patients locally and had in this case followed the course of treatment called for under the circumstances. Dr. Campbell testified that nothing about Ms. Sumpter's condition mandated intubation or merited the risks inherent with intubation or fiber-optic bronchoscopy. Dr. Campbell's testimony presented several factors which indicated that Ms. Sumpter's airway was not closing off before her sudden respiratory failure. Dr. Campbell's position was fully supported by the expert testimony of Dr. William Wood, who, himself, had trained and worked at the U.A.B. burn unit.

"Dr. Campbell's course of treatment was attacked by burn experts, Dr. Robert Demling and Dr. Alan Dimick, head of the U.A.B. burn unit.

"Dr. Grana's testimony was that he did not refuse to perform a tracheostomy and that, indeed, he was not even present on the occasion of Ms. Sumpter's respiratory failure.

"Following all of the testimony in the case and while the Jury was deliberating, Counsel for Dr. Campbell advised the Court on the record and in the presence of all parties, that they had reason to believe that the Plaintiff and Defendant Holy Name of Jesus Hospital had entered into a pro tanto settlement and requested that the Court order those Defendants to reveal such settlement and make its terms known to the Jury. The Court noted that no pro tanto settlement had been presented to the Court and thus refused to order the Plaintiff and Defendant Hospital to reveal any agreement they might have reached.

"The Jury returned a verdict in favor of Dr. Grana but found against the hospital and Dr. Campbell and assessed damages in the amount of $4,000,000.00."

Indeed, while the jury was deliberating, and just moments before it returned its verdict, Ms. Williams and Holy Name of Jesus Hospital ("Hospital") entered into a pro tanto settlement under which the hospital agreed to pay $1 million in settlement of the claim against it. Giving credit for the $1 million that the hospital had agreed to pay, the trial court entered a $3 million judgment against Dr. Campbell, based on the jury verdict. After the trial court denied his post-judgment motions, Dr. Campbell brought this appeal. We affirm.

Nine issues are raised on appeal: (1) Whether the Alabama Wrongful Death Statute, § 6-5-410, Code of Ala.1975, is unconstitutional as applied in cases involving multiple defendants. (2) Whether the failure to inform the jury of the pro tanto settlement between the Hospital and the plaintiff so taints the verdict that it must be set aside. (3) Whether the failure of a juror to answer or to respond truthfully to voir dire questions so prejudiced Dr. Campbell as to require a new trial. (4) Whether the testimony of Dr. Alan Dimick should have been precluded at trial. (5) Whether newly discovered evidence that Dr. Dimick had testified falsely entitled Dr. Campbell to a new trial. (6) Whether the mention of insurance by the plaintiff's counsel during closing arguments mandates a new trial. (7) Whether the trial court properly charged the jury on spoliation of the evidence. (8) Whether the trial court properly charged the jury on the definition of "substantial evidence." (9) Whether the jury's verdict is excessive, so as to require remittitur.

Dr. Campbell challenges the Wrongful Death Act, § 6-5-410, on constitutional grounds, alleging that the Act, as applied in this case, violates his right to a trial by jury, his right to due process of law, and his right to equal protection of the laws under the United States Constitution and the Alabama Constitution.

Alabama has had a wrongful death act since 1852, when the legislature passed an act "to prevent homicides," §§ 1940, 1941, Code of Alabama 1852; Central of Georgia Ry. v. Ellison, 199 Ala. 571, 579-80, 75 So. 159, 163 (1916); Tatum v. Schering Corp., 523 So.2d 1042 at 1057 (Ala.1988). An amendment, approved February 21, 1860, was by a later case held to have been expressly made applicable to homicides caused by the "wrongful act, omission or culpable negligence of any officer or agent of any chartered company" (this was the language of § 1941, Code of 1852) as well as to deaths caused by natural persons. The amendment provided in § 2:

"[W]hen the death of a person is unlawfully caused by another, the personal representative of the deceased may maintain an action against the latter at any time within two years thereafter, and may recover such sum as the jury deem just, and the amount so recovered, shall be distributed as personal property of an intestate is now distributed, and shall not be subject to the payment of the debts of the deceased."

That amendment provided in § 3:

"That the right of action hereby given shall survive against the personal representative of the person unlawfully causing the death as aforesaid."

Ala.Acts 1859-60, Act No. 46, p. 42; the case interpreting that amendatory act was Savannah & Memphis R.R. v. Shearer, 58 Ala. 672, 678 (1877) (noting that although amendatory Act No. 46 repealed § 1938 and § 1939 of the 1852 Code, it did not repeal § 1941 of that Code). In 1872, the Alabama legislature re-enacted the...