Drs. Lane, Bryant, Eubanks & Dulaney v. Otts

• Decision Date: 26 March 1982
• Citation: 412 So.2d 254
• Parties: DRS. LANE, BRYANT, EUBANKS & DULANEY, a Partnership Composed of Martin L. Lane, Edward L. Bryant, Jr., R. Eubanks, Jr., and Frank M. Dulaney v. Margaret B. OTTS, as Administratrix of the Estate of William E. Otts, deceased. 80-518.
• Court: Alabama Supreme Court

Page 254

412 So.2d 254

DRS. LANE, BRYANT, EUBANKS & DULANEY, a Partnership Composed of Martin L. Lane, Edward L. Bryant, Jr., R. Eubanks, Jr., and Frank M. Dulaney v. Margaret B. OTTS, as Administratrix of the Estate of William E. Otts, deceased.

80-518.

Supreme Court of Alabama.

March 26, 1982.

Alton R. Brown, Jr. and James H. Crosby of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellants.

Richard Bounds and Robert T. Cunningham, Jr. of Cunningham, Bounds, Byrd, Yance & Crowder, Mobile, for appellee.

BEATTY, Justice.

Plaintiff, Margaret B. Otts, filed this action in Mobile Circuit Court against Drs. Lane, Bryant, Eubanks and Dulaney, board certified anesthesiologists, seeking damages for the death of William E. Otts resulting from the alleged negligence and wantonness of the physicians. Otts was scheduled for orthopaedic surgery. His surgeon arranged for the defendant group of physicians to provide anesthesia service to him during the course of his surgery. The group employed Certified Registered Nurse Anesthetists (hereinafter CRNA's), registered nurses who receive two years of specialized on-the-job training in the administration of anesthesia. It was the group's policy to permit CRNA's to handle the anesthetic management of patients from the beginning of a surgical procedure until the end without the presence of a board certified M.D./anesthesiologist. The critical facts in this case center around the period during which Otts was anesthetized.

During the course of Otts's surgery on April 30, 1974, the CRNA employed by the defendants experienced difficulty in ventilating the patient Otts through the endotracheal tube. Dr. Lane, the nearest anesthesiologist, who was administering anesthesia in another operating room, was not called by the CRNA until Otts suffered a cardiac arrest. After surgery and upon leaving the operating room, Otts suffered from severe brain damage and was in a coma. He died six weeks later at Thomasville Hospital while still comatose.

Plaintiff offered evidence to support her contention that Otts's death resulted from lack of oxygen to the brain which was caused by an uncorrected airway obstruction. Furthermore, through expert testimony, plaintiff attempted to show that the failure of the CRNA to call for help at the moment she had difficulty ventilating Otts was a departure from accepted medical standards. The defendants contended that the lack of oxygen to the brain was caused by an "air embolus."

The jury returned a verdict in favor of plaintiff in the amount of $500,000.00. The defendants' post-trial motions were denied and they appeal. ¹ We affirm.

Defendants raise eight issues on appeal. They claim the trial court committed reversible error:

(1) By giving certain charges requested by plaintiff and by refusing to give a particular charge requested by defendants pertaining to the standard of medical care (2) By not requiring plaintiff to read the entire former testimony of an unavailable expert witness;

(3) By refusing to admit into evidence an article entitled "Pathophysiology in Intravenous Air Embolisms in Dogs";

(4) By requiring defendants to cross-examine one of plaintiff's witnesses during the presentation of plaintiff's case in chief;

(5) In refusing to strike the ad damnum clause of the amended complaint;

(6) In allowing plaintiff to comment to the jury regarding defendants' decision not to call a particular witness;

(7) In allowing plaintiff to argue defendant's daily income; and

(8) In allowing plaintiff to argue the value of human life during closing argument.

I

Defendants claim that the trial court committed reversible error by giving plaintiff's Requested Charges 1, 8 and 11.

Plaintiff's Requested Charge No. 1:

"The Court charges the jury that in performing professional services for a patient, a medical doctor has a duty to use that degree of learning and skill ordinarily possessed and used by members of his profession and specialty, and in the application of his skill and learning he is also under a duty to use ordinary care and diligence."

Plaintiff's Requested Charge No. 8:

"The court charges the jury that Drs. Lane, Bryant, Eubanks & Dulaney owed to William E. Otts the duty to exercise such reasonable care, skill and diligence in the treatment of William E. Otts which physicians in the same general neighborhood, and in the same line of practice, ordinarily have and exercise in a like case. The court further charges the jury that the same general neighborhood refers to a national medical neighborhood or national medical community, of reasonably competent physicians in the same line of practice acting in the same or similar circumstances. (Emphasis added.)"

Plaintiff's Requested Charge No. 11:

"The Court charges the jury that Drs. Lane, Bryant, Eubanks and Dulaney owed to William E. Otts the duty to exercise that degree of care, skill and diligence in their treatment of William E. Otts which reasonably competent physicians in the same line of practice in the national medical neighborhood or national medical community would have exercised under the same or similar circumstances. The Court further charges the jury that this duty to exercise such reasonable care, skill and diligence cannot be lowered by the physicians in Mobile County, Alabama, by generally accepting and engaging in a negligent standard of care."

Defendants complain that Charge No. 1 failed to condition defendants' duty on "that degree of care and skill as physicians and surgeons in the same general neighborhood, pursuing the same general line of practice ordinarily exercised in like cases." They cite Parrish v. Spink, 284 Ala. 263, 266, 224 So.2d 621 (1969), for this proposition. The entire charge must be reviewed to determine if there is reversible error. Wright v. Rowland, Ala., 406 So.2d 830 (1981). Our review reveals that the trial court, more than once, characterized defendants' duty in accord with this Court's opinion in Parrish, supra. Thus, we cannot say that defendants were prejudiced by the giving of Charge No. 1.

Issue is taken with Charges 8 and 11 because they describe the "same general neighborhood" as the "national medical neighborhood" or "national medical community." Defendants claim that these charges imposed a higher degree of care on physicians in the treatment of a patient than required by Alabama law. That is, defendants argue that the "same general neighborhood" rule, codified in Code of 1975, § 6-5-484(a), should not have been defined beyond its usual and customary meaning.

In Zills v. Brown, Ala., 382 So.2d 528 (1980), a plurality of this Court was of the opinion that "the language 'same general neighborhood' ... refer(s) to the national medical neighborhood or national medical community, of reasonably competent physicians acting in the same or similar circumstances." Id. at 532. (Emphasis in original.) We agree with that description for the same reasons given by the plurality, notably that:

"Locality rules have always had the practical difficulties of: (1) a scarcity of professional people in a locality or community qualified to testify; and (2) treating as acceptable a negligent standard of care created by a small and closed community of physicians in a narrow geographical region. Distinctions in the degree of care and skill to be exercised by physicians in the treatment of patients based upon geography can no longer be justified in light of the presently existing state of transportation, communications, and medical education and training which results in a standardization of care within the medical profession. There is no tenable policy reason why a physician should not be required to keep abreast of the advancements in his profession. (Id. at 532.)"

Defendants argue that, even if a national neighborhood standard applied in this case, the trial court committed reversible error in refusing to give defendant's Requested Charge No. 36, which stated:

"The Court charges the jury reasonably skilled physicians acting in the same or similar circumstances are not held to a national standard where it has been demonstrated that such a standard could not, because of justifiable circumstances, be adhered to."

That charge complies with the exception to the national standard of care enunciated in Zills, supra at 532. Therefore, defendants claim they were entitled to a charge excusing them from the national standard if justifiable circumstances were demonstrated. According to defendants, the facilities, equipment, availability of physicians and logistics on the date of the surgery prevented them from meeting the national neighborhood standard. We disagree.

Evidence demonstrating "justifiable circumstances" for not adhering to the national standard of care is admissible as a defense in a medical malpractice case in which noncompliance with that standard is in issue. "Justifiable circumstances" may include the circumstances of medical resources available to the medical practitioner and, by allowing proof of that circumstance, allowance is made for the type of local community, and its medical resources, in which the physician practices his profession. Cf. Brune v. Belinkoff, 354 Mass. 102, 235 N.E.2d 793 (1968). Allowance of "justifiable circumstances," moreover, assures that the local practitioner need not run the risk of being judged by a national standard which may be abstractly unaffected by local conditions.

In the present case, however, the record reveals through expert testimony that the national standard and the local standard, i.e., the Mobile standard, are the same. That is to say, the failure of the CRNA to call for assistance upon first realizing that she had a problem ventilating the patient was a departure from the accepted standard of care in Mobile as well as elsewhere in the national medical community. Consequently, the defendants were not prejudiced by the failure to give Charge No. 36 as it applied to a national...