Hamilton v. Scott

• Decision Date: 18 May 2012
• Docket Number: 1100192.
• Citation: 97 So.3d 728
• Parties: Amy HAMILTON, individually and on behalf of her stillborn son v. Dr. Warren SCOTT et al.
• Court: Alabama Supreme Court

97 So.3d 728

Amy HAMILTON, individually and on behalf of her stillborn son

v.Dr. Warren SCOTT et al.

1100192.

Supreme Court of Alabama.

May 18, 2012.

Rip Andrews and Thomas M. Powell of Marsh, Rickard & Bryan, P.C., Birmingham, for appellant.

Scott M. Salter and Allison J. Garton of Starnes Davis Florie LLP, Birmingham, for appellees.

Frank J. Stakely and Bethany L. Bolger of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for amicus curiae Medical Association of the State of Alabama, in support of the appellees' application for rehearing.

On Application for Rehearing

PARKER, Justice.

This Court's opinion of February 17, 2012, is withdrawn, and the following is substituted therefor.

Amy Hamilton, individually and on behalf of her stillborn son, sued Dr. John Blakely Isbell, Dr. Steven Coulter, Dr. Warren Scott, and the Isbell Medical Group (“IMG”) (Dr. Isbell, Dr. Coulter, Dr. Scott, and IMG are hereinafter sometimes referred to collectively as “the defendants”), as well as several fictitiously named defendants, claiming that their negligent and wanton acts had wrongfully caused the death of her son and also caused her to suffer emotional distress. The DeKalb Circuit Court entered a summary judgment in favor of the defendants, holding that a wrongful-death action could not be maintained for the death of an unborn child who died before he was viable. The trial court also held that Hamilton was not in the “zone of danger” and, thus, could not recover damages for emotional distress. We reverse in part, affirm in part, and remand.

Facts and Procedural History

A. Hamilton's pregnancy and medical care¹

In December 2004, Hamilton, pregnant with her second child, sought prenatal care from IMG, which had provided Hamilton with prenatal care during her first pregnancy. On Monday, January 10, 2005, Hamilton contacted IMG; she explained that she and her seven-year-old son had a rash that she believed might be “fifth disease,” an infection caused by human parvovirus B19. The next day, January 11, 2005, Hamilton had blood drawn at IMG and was told that she would be notified of the results. On Friday, January 14, 2005, an IMG employee told Hamilton over the telephone that Hamilton “had been exposed to fifth disease and had the parvovirus” and that, consequently, she needed to immediately schedule an ultrasound, to be followed by an ultrasound every 2 weeks for the next 10 weeks. Hamilton understood this every-two-weeks ultrasound schedule to have been ordered by Dr. Isbell; Dr. Isbell confirmed this in his deposition.

On Monday, January 17, 2005, Hamilton went to IMG for the first scheduled ultrasound as well as a consultation regarding treatment for fifth disease. However, the doctor with whom Hamilton was scheduled to meet was unavailable; Hamilton was also unable to undergo the scheduled ultrasound because the technician was leaving early. Hamilton's request that she be sent to the adjoining hospital for an ultrasound was denied by an IMG employee; instead, she was told to wait for her next appointment two weeks later.

Hamilton returned to IMG two weeks later, on Monday, January 31, 2005; during the appointment, the doctor she met with, Dr. Coulter, listened to the unborn child's heartbeat and told Hamilton that an ultrasound was unnecessary. He also explained to Hamilton the potential complications of fifth disease and the procedure for potential treatment of her unborn child, if necessary.

On February 18, 2005, Hamilton returned to IMG for her next scheduled appointment; she again requested an ultrasound, but the doctor she met with, Dr. Scott, said that an ultrasound was unnecessary.

On February 25, 2005, Hamilton returned to IMG for her next scheduled appointment, at which an ultrasound was performed. During the ultrasound, IMG's technician noticed that Hamilton's unborn son was not as large as the technician thought he should be at that stage of the pregnancy and that there was “a little fold at the back of his neck which worried [the technician] a little bit because it might be a sign of anemia.” The technician told Hamilton “not to be alarmed because [she] would probably be referred to a perinatologist for a second opinion” and that treatment, if any was necessary, would be available at “Kirklin Clinic.”

Following the ultrasound, Hamilton met with Dr. Scott, who looked at still photographs from the ultrasound. Dr. Scott told her that a “nuchal fold [was] beginning to form” and that the nuchal fold “was one of the signs of becoming severely anemic and having hydrops,” which, he said, “can lead to congestive heart failure.” However, Dr. Scott told Hamilton that hydrops “can reverse itself” and that Hamilton should wait two weeks and return to IMG for another ultrasound. Hamilton requested that Dr. Scott refer her to “a perinatologist at Kirklin Clinic,” but Dr. Scott told her that IMG could “handle it” at its office. Instead, Dr. Scott told Hamilton to come back in two weeks for another ultrasound, and he promised to refer Hamilton to a perinatologist at that point, if necessary.

Eleven days later, on March 8, 2005, Hamilton visited IMG without a scheduled appointment because she was feeling ill. In her deposition, Hamilton described how, after she tested positive for the flu, Dr. Scott “prescribed Extra Strength Tylenol for body aches, pain, and fever, because he said with that particular situation, there's nothing you can do, you just have to wear it out.” Hamilton summarized her symptoms as an “acute illness.”

On March 10, 2005, Hamilton returned to IMG; as she explained in her deposition, she was “feeling really bad” and “seemed to be getting worse.” She had also noticed “decreased movement” of her unborn child. An ultrasound performed by IMG determined that Hamilton's unborn son had died, probably in the previous 24 or 48 hours; labor was induced, and the child was stillborn on March 11, 2005. Dr. Isbell, Dr. Coulter, and Dr. Scott agree that Hamilton's unborn son had not reached viability, which is to say that, if her son had been born alive on that date, he was unlikely to have survived outside the womb.

B. Hamilton's litigation

On April 28, 2006, Hamilton filed a complaint in the trial court, alleging that the defendants had caused the death of her unborn son “and that the death of her unborn son was wrongful within the meaning of the Alabama Wrongful Death Act, Ala.Code § 6–5–410 (1975).” ² Hamilton later amended her complaint to allege that the defendants' negligence had caused her to suffer “mental anguish and emotional distress.”

After completing discovery, the defendants filed a summary-judgment motion on June 7, 2009, arguing that this Court's decisions in Gentry v. Gilmore, 613 So.2d 1241 (Ala.1993), and Lollar v. Tankersley, 613 So.2d 1249 (Ala.1993), did not permit a wrongful-death action where a previable child died before birth: “The Supreme Court of Alabama has held that a plaintiff cannot maintain a wrongful death action for a fetus not viable to live outside of the womb.... As such, summary judgment must be granted on behalf of the Defendants in regard to the wrongful death claim of the fetus.” The defendants also argued that Hamilton could not recover damages for her emotional distress because, they said, she had not shown either that she had sustained physical injury or that she was placed at risk of immediate physical harm by the defendants, as required by this Court in AALAR, Ltd. v. Francis, 716 So.2d 1141 (Ala.1998). The defendants stated that Hamilton “failed to demonstrate that she was in the ‘zone of danger’ as required by Alabama law.” ³

Dr. Isbell and Dr. Coulter separately moved for a summary judgment; Dr. Isbell argued that Hamilton had presented no argument or evidence to show that he had breached the standard of care in his treatment of her.

Hamilton responded to the summary-judgment motions on October 1, 2010. She conceded that Dr. Isbell was entitled to a summary judgment, stating that she “hereby agrees that the ‘Motion for Summary Judgment on Behalf of Dr. John Blakely Isbell’ is due to be granted and concedes that there is no set of facts that, if proved against Dr. Isbell, would entitle her to recover.” However, she argued that the summary-judgment motions filed by the other defendants should be denied. Specifically, she argued that in Gentry this Court had “based [its decision to deny recovery for the death of a previable unborn child] on the fact that ‘there is no clear legislative direction.’ 613 So.2d at 1244.” Hamilton argued that subsequent legislative actions had provided the courts with that “legislative direction.” Specifically, Hamilton argued that several statutes on abortion enacted since Gentry was decided “provided clear direction indicating that the term ‘minor child’ can include nonviable fetuses.” On the issue of damages for emotional distress, Hamilton argued that the loss of her unborn child was a physical injury that entitled her to recover damages for her emotional distress; alternatively, she argued that she was entitled to damages for emotional distress under Taylor v. Baptist Medical Center, Inc., 400 So.2d 369 (1981), in which this Court permitted a mother to recover damages for emotional distress following the death of her child during birth.

On October 5, 2010, the defendants filed a reply brief in support of their summary-judgment motions. In their reply brief, they argued that “the law in Alabama remains that a plaintiff cannot maintain a wrongful death action for a non-viable fetus and the Alabama legislature has not declared otherwise.” Specifically, the defendants argued that the legislature's subsequent, abortion-related legislation did not justify overruling Gentry and Lollar. The defendants also argued that, in seeking damages for her emotional distress, Hamilton did “not state a claim upon which relief can be granted” because, they said, she “misinterprets the holding in Taylor ” and her “individual claim is...