Ex parte Snow

Decision Date24 September 1999
Citation764 So.2d 531
PartiesEx parte Dr. Lamar SNOW et al. (In re Mary Alayne Kendall et al. v. Springhill Memorial Hospital et al.)
CourtAlabama Supreme Court

A. Danner Frazer, Jr., and Edward C. Greene of Frazer, Greene, Upchurch & Baker, L.L.C., Mobile; and Oakley Melton, Jr., of Melton, Espy, Williams & Hayes, Montgomery, for petitioners.

Michael A. Worel and David G. Wirtes, Jr., of Cunningham, Bounds, Yance, Crowder & Brown, L.L.C., Mobile, for respondents Mary Alayne Kendall and Bradford Kendall.

Norman E. Waldrop, Jr., of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, L.L.C., Mobile, for respondents Dr. Frank Vizzi, Dr. Charles Williamson, and Internal Medical Center.

Thomas H. Keene and Ben C. Wilson of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for amicus curiae Medical Ass'n of the State of Alabama, in support of the petitioners.

PER CURIAM.

Dr. L. Lamar Snow, Dr. Steven L. Weinstein, and Surgical Association of Mobile, P.A., defendants in a medical-malpractice action pending in the Mobile Circuit Court, petition for a writ of mandamus directing Judge Joseph S. Johnston, to grant their motion for a summary judgment. They contend they are entitled to a summary judgment on the basis that the applicable statute of limitations, Ala.Code § 6-5-482, bars the plaintiffs' claims against them. This petition requires an interpretation of Rule 9(h), Ala.R.Civ.P., relating to fictitious parties, and Rule 15(c), pertaining to the relation back of amendments to pleadings.

On August 11, 1993, Mary Alayne Kendall went to the emergency room at South Baldwin Hospital in Foley, suffering abdominal pain. An ultrasound procedure revealed that Mrs. Kendall was suffering from gallstones and that she had a gallstone in the common bile duct. Dr. Tyler Nichols referred Mrs. Kendall to Springhill Memorial Hospital ("Springhill") in Mobile, for treatment. Mrs. Kendall was initially treated in Springhill's emergency room and then was admitted to the hospital. Dr. Charles Ivey Williamson took a patient history and performed a physical examination on Mrs. Kendall. His notes stated, in pertinent part:

"HISTORY: Mrs. Kendall is a young, white female referred by Dr. Tyler Nichols of Foley, AL, who presented to the Emergency Room there, having had severe pain in the right upper quadrant for several days. On the phone, Dr. Nichols reported a stone in the common duct. There were numerous stones in the gallbladder, amylase elevation and slight bilirubin elevation, according to my recollection. She was referred here for further evaluation of acute cholecystitis, early pancreatitis and a stone in the common bile duct.
". . . .
"IMPRESSION: 1. ACUTE CHOLECYSTITIS, STONE IN THE COMMON BILE DUCT ON SONOGRAM AT BALDWIN HOSPITAL.
"RECOMMENDATIONS: Ask Dr. Frank Vizzi to evaluate. Plan laparoscopic stone removal followed by laparoscopic cholecystectomy. This has been discussed with the patient and will be discussed with the patient and family by Dr. Vizzi and [Drs.] Snow, Weinstein and Hannon."

On August 12, 1993, Dr. Frank Vizzi and Dr. Ivey Williamson, of the Internal Medicine Center, performed a procedure known as an endoscopic retrograde cholangiopan-creatography ("ERCP") study; a papillotomy; and an endoscopic sphincterotomy on Mrs. Kendall. Dr. Vizzi's "procedure note" described the ERCP procedure and his findings as follows:

"PROCEDURE: ERCP WITH PAPILLOTOMY.
"FINDINGS: After explaining the procedure and its risks including perforation and pancreatitis to the patient, I sprayed the back of the throat with Cetacaine spray and sedated patient as above. I then inserted the Siberian scope into the mouth and down into the second portion of the duodenum. I visualized the papillae. The papillae appeared normal though. The pancreatic duct was then cannulated which filled normally to its tail. Next, the common bile duct was cannulated and the common bile duct, the left and right hepatic ducts filled normally. There was no filling initially of the cyst duct. A 12 mm. spincterotomy was then done. There was a minimal amount of bleeding which was stopped by heating coag., then an 11.5 balloon was passed up the common bile duct and swept the common bile duct. No stone or stone material appeared to come out of the common bile duct.
"RECOMMENDATION: Continue antibiotics until the morning and lap. cholecystectomy in a.m. if possible."

Later that same day, Dr. L. Lamar Snow and Dr. Steven L. Weinstein performed a laparoscopic cholecystectomy (surgical removal of the gallbladder) on Mrs. Kendall. Dr. Snow's "operative summary" stated:

"OPERATIVE PROCEDURE: Under general endotracheal anesthesia, abdomen was prepped and draped in the usual manner. The peritoneal cavity was insufflated through the umbilicus. Three working ports were then placed in the right upper quadrant and upper midline and the gallbladder was grasped, the neck was exposed and cleaned off. A tyanscystic duct cholangiogram showed complete blockage of the distal common duct and what appeared to be large defects within the common duct thought to be probable blood clots. The duct was compressed and large clots were extruded through the cystic duct. A 5-wire helicobasket was then inserted through the cystic duct into the common duct and into the duodenum and multiple large clots were retrieved. Repeat cholangiogram appeared to be normal. It was elected to leave the drainage tube. A 12 Redd-Robinson catheter was placed in the common duct via the cystic duct and held in place with a plain Ender loop. The cystic artery was then double clipped and divided and the gallbladder removed from the gallbladder bed and brought out through the upper midline incision. The T-Tube was then brought out through the upper midline port and a 15 Silastic drainage tube was placed in the subhepatic space and brought out through the right flag port. The other incisions were closed with staples. The wounds were dressed. The patient was sent to Recovery in stable condition."

On the second day after surgery, Mrs. Kendall developed "multi-system organ failure with pancreatitis, hepatic insufficiency, pulmonary insufficiency, and renal failure." On August 19, 1993, Mrs. Kendall underwent an exploratory laparoscopy. Dr. Snow's operative report stated:

"PREOP DIAGNOSIS: Severe sepsis with respiratory distress syndrome and DIC with complete renal failure secondary to pancreatitis, secondary to stone, status post laparoscopic cholecystectomy and exploration of the common duct, insertion of drainage tube.
"POSTOP DIAGNOSIS: Same with possible obstructed distal common duct with possible yeast cholangitis and large pancreatic phlegmon secondary to pancreatitis."

Over the next several days, Mrs. Kendall developed "ischemic changes to the extremities." Her family requested further evaluation, and she was transferred by air ambulance to the University of Alabama at Birmingham Hospital (UAB Hospital), in Birmingham. Ultimately, Mrs. Kendall's condition required amputation of both legs below the knees and the loss of her thumbs and all the fingers on both hands.

Later in 1993, Mrs. Kendall and her husband sought legal advice concerning a possible malpractice action. In the course of his investigation, the Kendalls' attorney requested Mrs. Kendall's medical records from Springhill and various physicians who had treated her. Dr. Snow received a letter from the Kendalls' attorney dated December 7, 1993, requesting Dr. Snow's office records. On December 21, 1993, Dr. Snow forwarded his medical records to the plaintiff, along with a letter. Dr. Snow's letter stated:

"Enclosed please find a copy of the records you requested. In addition I have included a short summary of the salient events occurring during the hospitalization of Ms. Mary Kendall.
"She was admitted to Springhill Memorial Hospital by a gastroenterologist with the diagnosis of acute cholecystitis, choledocholithiasis and possible pancreatitis. I was consulted regarding a laparoscopic cholecystectomy to follow an endoscopic retrograde choledocho-pancreatogram with ampullary papillotomy to remove the common duct stone. The `ERCP' with papillotomy was performed the next morning. Following this she developed severe abdominal pain and tenderness on abdominal examination and an elevated amylase. She was taken to surgery that evening for a cholecystectomy. A routine operative cholangiogram was obtained which showed obstruction of the common bile duct. The duct was explored and blood clots were removed. A drainage tube was left in the common duct. Postoperatively she continued to develop fulminate pancreatitis with sepsis which progressed to severe prolonged multiple organ failure including ARDS [adult respiratory distress syndrome, or lung failure], liver failure, kidney failure, and heart failure. We were extremely gratified by her eventual survival against overwhelming odds. The treatment events eventually leading to her recovery are well documented in the hospital record. Suffice to say that she would have died without the exemplary care by each and every physician, nurse and specialty technician involved in her care.
"If I can be of further assistance please do not hesitate to call or write."

The Kendalls' attorney subsequently forwarded Mrs. Kendall's medical records (including the records forwarded by Dr. Snow) to a board-certified surgeon for a review of the care that was given to Mrs. Kendall by Springhill and various physicians.

On January 12, 1995, Mrs. Kendall and her husband filed a medical-malpractice action against Springhill Memorial Hospital; Dr. Frank Vizzi; and Dr. Vizzi's medical group, Internal Medicine Center. Mrs. Kendall alleged negligence in regard to the treatment she had received, and her husband claimed a loss of consortium. Specifically, the complaint stated:

"2. The plaintiff further alleges that all of her injuries and damages as set forth hereinbelow were
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