Frazier v. Gillis
| Decision Date | 05 August 2011 |
| Docket Number | 2100202. |
| Citation | 85 So.3d 443 |
| Parties | Joey FRAZIER, as executor of the estate of Florine Bryant v. Frank GILLIS, M.D. |
| Court | Alabama Court of Civil Appeals |
Alabama Supreme Court 1101356.
James B. Douglas, Jr., of McNeal & Douglas, Attorneys at Law, LLC, Auburn, for appellant.
Randal H. Sellers and L. Ben Morris of Starnes Davis Florie LLP, Birmingham, for appellee.
Joey Frazier, the executor of the estate of his mother, Florine Bryant, appeals from a judgment as a matter of law entered in favor of Frank Gillis, M.D., in this medical-malpractice case.
The record, viewed in the light most favorable to Frazier, see Leonard v. Cunningham, 4 So.3d 1181, 1184 (Ala.Civ.App.2008), indicates the following:
Dr. Gillis is a family practitioner who began treating Bryant in May 1999. In 2000, Carol Davis, a certified nurse practitioner, began working with Dr. Gillis at Lister Healthcare in Florence. Dr. Gillis was Davis's "primary supervising collaborating physician." In that role, Dr. Gillis supervised the treatment Davis provided to patients, but, Davis testified, Dr. Gillis was not required to be physically present when she rendered that treatment. Bryant's medical records indicate that Davis treated Bryant numerous times over the years.
On August 29, 2005, Dr. Gillis diagnosed Bryant with atrial fibrillation
, a heart condition that can result in the formation of a blood clot, which, in turn, can travel to the brain and cause a stroke. To treat Bryant, Dr. Gillis placed her on Coumadin, a blood thinner that lessens the chances of the formation of a blood clot. However, blood thinners like Coumadin also pose a risk for patients. Dr. Gillis testified that he typically advises his patients that Coumadin can be "a very dangerous drug unless taken appropriately." Coumadin is a "highly individualized" drug and the proper dosage cannot be established without carefully monitoring the patient. Dr. Gillis said that patients taking Coumadin The frequent testing is intended to ensure that the patient remains within what is called the "therapeutic range." To ensure the patients remain within that range, their International Normalized Ratio ("INR") is monitored. Dr. Gillis testified that the therapeutic range for patients with atrial fibrillation who are being treated with Coumadin is between 2.0 and 3.0. An INR of 1.0 is considered normal.
Dr. Gillis stated that he gave Bryant the instructions regarding the dangers of Coumadin
and the need for initial frequent monitoring; however, Bryant's records do not indicate that the instructions were given to her. Dr. Gillis said his practice is to make a notation in the patient's records regarding the instructions he provides to them, and he acknowledged that a notation regarding those instructions should be in Bryant's record. Dr. Gillis also acknowledged that he had no independent recollection of instructing Bryant on the use of Coumadin ; he based his testimony on his usual practice. Davis also testified that she had no recollection of Dr. Gillis's instructing Bryant on the use of Coumadin
. She stated that she provided the instructions to Bryant, but she, too, failed to include a notation regarding the instructions in Bryant's medical records. Like Dr. Gillis, Davis testified that a notation regarding the instructions should have been included in Bryant's records.
When Bryant was prescribed Coumadin
on August 29, 2005, she was instructed to return to the lab at Lister Healthcare on August 31 to have her INR checked and to begin the process of establishing the proper dosage of Coumadin for her to take. Bryant came to the lab as ordered. Her INR on that date was 1.9. She was ordered to take five milligrams of Coumadin every day and to return to the lab in one week, on September 7, 2005, to have her INR rechecked, pursuant to Davis's orders. A notation in Bryant's medical records indicates, "pt. notified, sb," which signifies that Sherry Bates, a nurse at the lab, gave Bryant the instructions. Bates testified that the notation is not made in the records until the patient is notified of the instructions.
Bryant returned to the Lister Healthcare lab as instructed on September 7, 2005, and employees of the lab drew her blood. However, the INR test was not performed on the drawn blood. On that same day, Dr. Gillis saw Bryant for a stress test
; however, he did not follow up on why the INR test had not been done. He stated that, at that time, Davis was monitoring Bryant's Coumadin dosage. However, Dr. Gillis testified that the failure to do the INR test on the blood drawn on September 7, 2005, was an error and that the proper dosage of Coumadin for Bryant could not be determined based only on the INR test done on August 29, 2005.
Dr. Gillis testified that his office records indicate that the next INR test was performed on November 14, 2005, which, he acknowledged, was "way too long between INRs." Bryant's November 14, 2005, INR was 34.2. Dr. Gillis agreed that an INR of 34.2 is an extremely dangerous level for the patient. Bryant had a colonoscopy
on September 13, 2005, and the physician performing that examination temporarily withheld Coumadin from Bryant to prevent possible bleeding from the colonoscopy. Dr. Gillis stated that he would expect Coumadin to be withheld before such a procedure and that the Coumadin would have to be restarted. He said that he received Bryant's colonoscopy report on October 4, 2005. No one in Dr. Gillis's office reviewed Bryant's medical chart when the report was received, and, at that time, Bryant was not scheduled for another check on her INR.
On October 6, 2005, Bryant was seen by a cardiologist pursuant to a referral by Dr. Gillis. The cardiologist's report indicated that Bryant was taking Coumadin
as directed by Dr. Gillis. The report indicated that a copy was forwarded to Dr. Gillis; however, Dr. Gillis testified that he was not provided with a copy of the report and that he did not see the report until litigation in this case began.
The evidence is undisputed that Dr. Gillis's office had no further contact with Bryant until November 9, 2005. According to Bates's testimony, on that date, she received a telephone call from Bryant during which Bryant complained that she had 12 blue spots on the inside of her left thigh and three blue spots on her right shoulder. Bryant also complained of having no energy. Davis received Bryant's message, wrote "RTO" on the message slip, and returned the slip to the nurses' box. Davis testified that "RTO" means that the patient is to return to the office immediately. Whether Bryant was actually notified to come into the office was disputed at trial. A notation, "called," appears on the message slip. However, both Davis and Bates testified that they did not call Bryant to tell her to return to the office. Dr. Gillis testified that he did not see the November 9, 2005, telephone message from Bryant. There is no indication that Bryant returned to the office for treatment at that time. Bryant's medical records were not reviewed on November 9, 2005. Dr. Gillis acknowledged that, if they had been reviewed, he or Davis would have seen that Bryant had not had an INR test performed since her one and only INR test check on August 31, 2005.
On November 13, 2005, Dr. Gillis went out of town. On Monday, November 14, 2005, Bryant came to Dr. Gillis's office and Davis treated her. At that time, an INR test was performed. The results indicated that Bryant had an INR of 34.2. Davis instructed Bryant to discontinue the Coumadin
and to have her INR checked on Friday, November 18, 2005. She then sent Bryant home. Davis testified that Dr. Gillis had never instructed her that if a patient's INR was as high as Bryant's was on that day, the patient was to go to the hospital immediately.
Bryant returned to Dr. Gillis's office on November 15, 2005, complaining that she was still bleeding from the site where blood had been drawn for her INR test the day before. She also complained of nausea and a headache. Davis ordered another INR test, and the results were faxed to her from the hospital. The results indicated that Bryant had an INR of 44.77; however, there was a note attached to the results indicating that a "mixing study" had been done and that Bryant's INR was actually .89.1
Davis took the INR report to Dr. George Evans, who was handling Dr. Gillis's patients while Dr. Gillis was out of town. Dr. Evans told Davis to refer Bryant to a hematologist. Davis did as instructed, and she also told Bryant that if she had any problems she was to go to the hospital. On November 16, 2005, Bryant was brought into Shoals Hospital, and, at that time, she was nonresponsive. Diagnostic testing indicated that she had suffered a subdural hematoma
, or bleeding in the brain. Efforts to save her life were unsuccessful, and Bryant died on November 17, 2005. Dr. Richard Hays, who testified on behalf of Frazier, and Dr. Gillis agreed that, had Bryant received appropriate treatment on either November 14 or November 15, she would most likely have survived.
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Gillis v. Frazier
...Bryant by other health-care providers was an "intervening cause," it did not absolve Dr. Gillis of liability. Frazier v. Gillis, 85 So.3d 443, 453 (Ala.Civ.App.2011). Dr. Gillis filed a petition for a writ of certiorari with this Court, which was denied on December 9, 2011.The case was retr......