EX PARTE ELBA GEN. HOSP. AND NURSING HOME, INC.

• Decision Date: 14 September 2001
• Citation: 828 So.2d 308
• Parties: Ex parte ELBA GENERAL HOSPITAL AND NURSING HOME, INC. (In re Gerald H. Nelson, as the executor of the estate of Orice Nelson, deceased v. Elba General Hospital and Nursing Home, Inc.)
• Court: Alabama Supreme Court

828 So.2d 308

Ex parte ELBA GENERAL HOSPITAL AND NURSING HOME, INC.

(In re Gerald H. Nelson, as the executor of the estate of Orice Nelson, deceased v. Elba General Hospital and Nursing Home, Inc.)

1000770.

Supreme Court of Alabama.

September 14, 2001.

W.H. Albritton IV of Albrittons, Clifton, Alverson, Moody & Bowden, P.C., Andalusia, for petitioner.

Gypsy Morrow of Stokes & Morrow, Elba; and Ralph Bohanan, Jr., of Pittman, Hooks, Dutton & Hollis, P.C., Birmningham, for respondent.

LYONS, Justice.

Gerald H. Nelson sued Elba General Hospital and Nursing Home, Inc. ("Elba General"), alleging that, through negligence or wantonness, Elba General had caused the death of his father, Orice Nelson, who had been a patient at Elba General. After the parties had conducted discovery, the trial court entered an order, on December 1, 1999, granting Elba General's motion for summary judgment. Gerald Nelson appealed the summary judgment to the Court of Civil Appeals, which reversed the judgment and remanded the action for further proceedings. See Nelson v. Elba Gen. Hosp. & Nursing Home, Inc., 828 So.2d 301 (Ala.Civ.App.2000). We granted Elba General's petition for certiorari review. We reverse.

I. Factual Background

The opinion by the Court of Civil Appeals states the facts surrounding the death of Orice Nelson:

"Orice Nelson, age 81, was a resident of Elba General when he died. He suffered from chronic obstructive pulmonary disease, congestive heart failure, and hypertension. While Orice was a resident at Elba General, his physician ordered that he receive two liters of oxygen per minute continuously via nasal cannula. On the morning of the day Orice died, his son discovered that the oxygen concentrator providing Orice with continuous oxygen was not operating. The concentrator was promptly turned back on by a nurse employed by Elba General. Later that day, Orice's physician made preparations to readmit Orice to the hospital for treatment of pneumonia. During this time, Orice ceased breathing. Because Orice's family had signed a `do not resuscitate' order, the hospital did not resuscitate him and he died."

Nelson v. Elba Gen. Hosp., 828 So.2d at 303.

II. Proceedings Below

A. In the Trial Court

Elba General moved for a summary judgment, pursuant to Rule 56, Ala. R. Civ. P. In support of its motion, Elba General provided an affidavit from Marie Lepore, R.N., who was the director of nursing for the nursing home at the time of Orice Nelson's death.

In her affidavit, Lepore states that she was personally familiar with Orice Nelson's care and that at no time while he was a patient at Elba General did the staff "deviate from the standard of care exercised by similarly situated health care providers practicing in the national medical community under the same or similar circumstances." She further states that the oxygen administered via a nasal cannula was palliative, not life-sustaining, and that on several occasions the cannula became displaced from Orice Nelson's nose, but that none of those incidents harmed him.

Nelson opposed Elba General's motion for summary judgment by proffering two affidavits, one from Valerie L. Hamilton, R.N., and the other from Carolyn Hudson, L.P.N. Hudson's affidavit stated that she was employed by Elba General at the time of Orice Nelson's death. She further stated that by allowing Orice Nelson's oxygen to be turned off Elba General "failed to follow the medical orders of Dr. Dyess." She concluded that this failure was "gross negligence" and that the treatment Orice Nelson received while a patient at Elba General "caused or contributed to [his] death."

Hamilton stated in her affidavit that she had reviewed the medical files in this case and had concluded that allowing Orice Nelson's oxygen to be turned off "would be a breach of the standard of care of the nurse health care providers providing care and treatment to Mr. Nelson."

Elba General filed two concurrent motions to strike the affidavits of Hudson and Hamilton. The motions were substantively identical, and in them Elba General claimed that the affiants had given "conclusionary testimony of medical causation"; that they had "fail[ed] to predicate the essentials for establishing the opinions"; that the affiants lacked the medical expertise to provide such testimony; that they had given testimony that was speculative and "mere conjecture"; that they had "conducted no research on the subject matter" of their opinions; and that the affidavits refer to "extemporaneous documentation" that is not a part of the affidavit. Nelson did not move to strike the affidavit of Elba General's affiant Marie Lepore.

On December 1, 1999, the trial court granted Elba General's motion to strike the affidavits of Hudson and Hamilton and entered a summary judgment in favor of Elba General. The trial court's order states that Elba General's motion to strike Hudson's affidavit is based upon a contention that she lacked the qualifications to speak to the ultimate issue in the case— causation. The trial court granted Elba General's motion to strike Hamilton's affidavit because the affidavit was a copy—not an original—and because it referred to deposition testimony and medical records that were not attached to the affidavit. The trial court's order concludes that "[t]he Defendant has made a prima facie showing [of] a lack of proximate cause and the Plaintiff has failed to provide substantial evidence to support his position."

On January 3, 2000, Gerald Nelson filed a motion to alter, amend, or vacate the judgment. The motion states that Nelson had argued at the summary-judgment hearing that the portions of Lepore's affidavit relating to causation should be struck and that Lepore "does not show affirmatively that she is competent to testify as an expert on causation." However, no record of that hearing appears in the record before us, and neither the case action summary nor the trial court's final judgment refers to a motion to strike portions of Lepore's affidavit or to any ruling on such a motion. The trial court denied the motion to alter, amend, or vacate. Gerald Nelson appealed. The opinion of the Court of Civil Appeals states: "We note that Nelson did not object to the use of the registered nurse's [i.e., Lepore's] testimony." 828 So.2d at 304. In its certiorari petition, Elba General vigorously maintains that "no objection to the [Lepore] affidavit was made at the trial level," and Nelson does not dispute this assertion in his responsive brief.

B. Before the Court of Civil Appeals

Nelson appealed to this Court, which transferred the case to the Court of Civil Appeals, pursuant to § 12-2-7(6), Ala. Code 1975. Nelson argued 1) that the trial court had wrongfully struck the affidavit of Valerie Hamilton and 2) that he had presented sufficient evidence to defeat Elba General's motion for a summary judgment.

The Court of Civil Appeals reversed the judgment of the trial court, relying upon Ex parte Diversey Corp., 742 So.2d 1250, 1254 (Ala.1999), wherein this Court held that a trial court may consider defective affidavits that are not objected to, so long as doing so does not result in a "gross miscarriage of justice." The Court of Civil Appeals then discussed at great length its view that nurses, such as Elba General's affiant, may not express opinions as to proximate cause in medical-malpractice cases because, that court suggested, such opinions are beyond their professional expertise. On appeal, Nelson did not rely on Diversey's exception for a "gross miscarriage of justice." The Court of Civil Appeals then reversed the summary judgment because, it held, Lepore's testimony was inadmissible. The Court of Civil Appeals concluded that enforcing Nelson's failure to object would result in a "gross miscarriage of justice." The opinion never addressed the issues actually raised by Nelson in his appeal.

III. Standard of Review

The standard of review applicable to a summary judgment is well established:

"The principles of law applicable to a motion for summary judgment are well settled. To grant such a motion, the trial court must determine that the evidence does not create a genuine issue of material fact and that the movant 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 are satisfied, the burden shifts to the nonmovant to present `substantial evidence' creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); § 12-21-12(d), Ala.Code 1975. Evidence is `substantial' if it is 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 Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

"In our review of a summary judgment, [either on a direct appeal or on a certiorari review,] we apply the same standard as the trial court. Ex parte Lumpkin, 702 So.2d 462, 465 (Ala.1997). Our review is subject to the caveat that we must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990)."

Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999).

IV. Waiver of Objection to Defective Affidavits

As a general rule, an appellate court will not reverse a summary judgment on a ground not presented in the trial court.

"[T]he appellate court can consider an argument against the validity of a summary judgment only to the extent that the record on appeal contains material from the trial court record presenting that argument to the trial court before or at the time of submission of the motion for summary judgment."

Ex parte Ryals, 773 So.2d 1011, 1013 (Ala. 2000) (citing Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992)). Put another way, on an appeal from a...