Carraway v. Kurtts, 1060589.
| Decision Date | 14 December 2007 |
| Docket Number | 1060589. |
| Citation | 987 So.2d 512 |
| Court | Alabama Supreme Court |
| Parties | Richard T. CARRAWAY, as executor of the estate of Shirley Gail Carraway, deceased v. Terry KURTTS, M.D. |
Chris N. Galanos, Mobile; and Charles R. Godwin, Timothy J. Godwin, and Gordon B. Godwin, Atmore, for appellant.
Robert P. MacKenzie III of Starnes & Atchison, LLP, Birmingham; and W. Christian Hines III of Starnes & Atchison, LLP, Mobile, for appellee.
Richard T. Carraway ("Richard"), as executor of the estate of Shirley Gail Carraway ("Shirley"), deceased, seeks a reversal of a summary judgment in favor of defendant Terry Kurtts, M.D. ("Dr. Kurtts"). We affirm.
In May 2003, Dr. Kurtts, a board-certified family practitioner, admitted Shirley to South Baldwin Regional Medical Center for evaluation to determine whether she should be placed in a nursing home. Shirley was evaluated by a neurologist, who diagnosed her as having Parkinson's disease. A few days later, Dr. Kurtts admitted Shirley to a nursing home owned and operated by Beverly Enterprises Alabama, Inc., doing business as Beverly Healthcare-Foley ("Beverly"), with diagnoses of Parkinson's disease, gastrointestinal bleeding, depression, pneumonia, and convulsions. While she was at the nursing home, Shirley was taking several drugs prescribed by Dr. Kurtts. Over the course of the next five months, Shirley was treated on several occasions at the emergency room at South Baldwin Regional Medical Center for complaints including drug withdrawal, anxiety attacks, internal bleeding, and pneumonia.
In November 2003, a nursing-home employee found Shirley having convulsions on the floor in her room; part of her body was wedged beneath her bed. She suffered a cut and some bruising as a result of the convulsions. Sometime later that same day, Shirley fell from her bed. Shirley was found by her brother Richard, a trained paramedic, who had come to visit her at the nursing home. After seeing that Shirley was barely breathing and that her skin was a bluish color, Richard called for help from the nursing staff and began performing CPR while waiting for emergency medical services to arrive. Paramedics were initially delayed in their efforts to reach Shirley because the nursinghome doors had been locked for the night. Shirley was taken by the paramedics to South Baldwin Regional Medical Center, where she was pronounced dead. Two days later an autopsy revealed that, "[while] no specific findings ... account for the patient's `acute illness' prior to her death, the origin was likely cardiac given the evidence of changes caused by hypertension and the evidence of early heart failure."
In November 2005, Richard, as executor of Shirley's estate, brought a wrongful-death action against Dr. Kurtts, Beverly, and several employees of Beverly. Beverly moved the trial court to compel arbitration pursuant to an agreement signed when Shirley was admitted to the nursing home. The trial court granted that motion,1 and Dr. Kurtts then moved to be excluded from the arbitration order. The trial court granted that motion. Shortly after he was excluded from the arbitration order, Dr. Kurtts moved for a summary judgment. The trial court set the hearing on that motion for August 28, 2006. Less than 24 hours before that hearing, Richard filed his motion in opposition to the summary judgment, along with a request under Rule 56(f), Ala. R. Civ. P., for "additional discovery and additional time for [Richard's standard-of-care expert], Dr. Cutson, to do those things necessary to submit an adequate affidavit to oppose Dr. Kurtts'[s] motion for summary judgment." The trial court granted a continuance to allow Richard's standard-of-care expert to submit an affidavit. In September 2006, Richard filed the first affidavit of Dr. Toni Cutson. In November 2006, the trial court held the hearing on Dr. Kurtts's motion for a summary judgment. Two weeks after the hearing was completed, Richard filed a second affidavit from Dr. Cutson. The trial court then entered a summary judgment in favor of Dr. Kurtts. Richard now appeals.
Richard presents three issues on appeal. The first is whether the trial court erred in finding that Dr. Kurtts produced sufficient evidence indicating that he did not breach his duty of care to shift the burden of proof to Richard. The second is whether the trial court erred in holding a hearing on a summary-judgment motion before discovery was completed. The third issue is whether Richard presented admissible, substantial evidence from a similarly situated health-care provider that Dr. Kurtts breached the standard of care applicable to a family practitioner.
"Our review of a summary judgment is de novo ...." Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala. 2003). In order to uphold a summary judgment, we must determine that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c)(3), Ala. R. Civ. P. "When the movant makes a prima facie showing that those two conditions have been satisfied, the burden then shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact." Blue Cross & Blue Shield v. Hodurski, 899 So.2d 949, 952 (Ala.2004). Substantial evidence is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see also § 12-21-12(d), Ala.Code 1975. In reviewing a summary judgment, we must view the evidence in the light most favorable to the nonmovant. Johnny Ray Sports, Inc. v. Wachovia Bank, 982 So.2d 1067, 1071 (Ala.2007).
The first issue is whether the trial court erred in finding that Dr. Kurtts presented sufficient evidence to meet his initial burden of showing that he did not breach his duty of care. Richard contends that the affidavit submitted by Dr. Kurtts does not address all the claims against him. Specifically, Richard alleges that because paragraph 4 of Dr. Kurtts's affidavit addresses only the last 24 hours of Shirley's life, Dr. Kurtts fails to address the specific claims alleged in Richard's complaint. The allegations made in the complaint against Dr. Kurtts specify neither a date nor a time when the alleged breaches occurred; however, the complaint alleges facts that begin with Dr. Kurtts initially treating Shirley in May 2003 and that end with her death November 14, 2003. In his affidavit, Dr. Kurtts states that he is a board-certified family practitioner "familiar with the standard of care of board-certified family practitioners caring for nursing home patients in 2003." Dr. Kurtts states that he took part in Shirley's treatment from May 6, 2003, until November 14, 2003. He further states that he "met the standard of care of board-certified family practitioners at all times material to the plaintiff's complaint."
Richard cites Mixon v. Cason, 622 So.2d 918 (Ala.1993), for the proposition that on a motion for a summary judgment by a health-care provider in a medical-malpractice action, the health-care provider bears the initial burden of producing evidence demonstrating that no genuine issue of material fact exists. 622 So.2d at 921. In Mixon, the plaintiff amended her complaint to include new claims, and those new claims were not addressed by the affidavits of three of the defendants in support of their summary-judgment motion. We held that those defendants had not met their initial burden because they had failed to demonstrate the absence of a genuine issue of material fact. Therefore, we reversed the summary judgment as to those defendants. Richard has not amended his complaint to allege any claims against Dr. Kurtts other than those already addressed in Dr. Kurtts's affidavit. Moreover, this Court has held:
Verchot v. General Motors Corp., 812 So.2d 296, 300 (Ala.2001) (quoting Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala.1999), quoting in turn Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989) (Houston, J., concurring specially)).2 Dr. Kurtts's affidavit denies that he breached the applicable standard of care, an essential element of Richard's claims against Dr. Kurtts. We therefore hold that the trial court did not err in finding that Dr. Kurtts presented sufficient evidence to shift the burden of proof to Richard.
The second issue is whether the trial court erred by conducting a hearing on the summary-judgment motion before discovery was completed. The day before the trial court's first scheduled hearing on Dr. Kurtts's summary-judgment motion, Richard filed his response to that motion and a Rule 56(f), Ala. R. Civ. P., motion, seeking a continuance to allow him to secure an affidavit from an expert witness. Rule 56(f) provides: "Should it appear from the affidavits of a party opposing the motion that the party cannot, for reasons stated, present by affidavit facts essential to justify the party's opposition, the court may deny the motion for summary judgment or may order a continuance to permit affidavits to be obtained ...." Richard's Rule 56(f) motion stated that he needed more time and discovery in order "to do those things necessary for [Richard] to submit an adequate affidavit to oppose Dr....
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