Hannon v. Duncan

• Citation: 594 So.2d 85
• Parties: Dr. Kenneth M. HANNON v. L.E. DUNCAN, Individually and as Father and Next Friend of Sonya Michele Duncan, a Deceased Minor. 1901651.
• Decision Date: 07 February 1992
• Court: Alabama Supreme Court

Page 85

594 So.2d 85

Dr. Kenneth M. HANNON v. L.E. DUNCAN, Individually and as Father and Next Friend of Sonya Michele Duncan, a Deceased Minor.

1901651.

Supreme Court of Alabama.

Feb. 7, 1992.

W. Boyd Reeves and Edward A. Dean of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellant.

Andrew T. Citrin, Michael A. Worel and Valentino D.B. Mazzia of Cunningham, Bounds, Yance, Crowder and Brown, Mobile, for appellee.

HOUSTON, Justice.

Dr. Kenneth M. Hannon, one of the defendants, appeals from a judgment entered on a jury verdict in a medical malpractice suit.

L.E. Duncan sued Mobile Infirmary, Inc., Kenneth M. Hannon, M.D., and Alfred F. Callahan, M.D., claiming damages based on an alleged wrongful death, damages based on an alleged loss of services, and damages based on alleged nursing services Duncan provided.

The jury returned a verdict against Mobile Infirmary, Inc., and Dr. Hannon on both the wrongful death claim and the claims seeking damages based on loss of services and on nursing services provided; and it returned a verdict in favor of Dr. Callahan on all claims.

Mobile Infirmary entered into a pro tanto settlement, settling its liability for $95,000--$75,000 was applied in partial satisfaction of the $100,000 the jury assessed for Duncan's loss of services and for the nursing services he provided; $20,000 was applied in partial satisfaction of the $500,000 the jury assessed on Duncan's claim of wrongful death. Therefore, Dr. Hannon is the only defendant appealing.

Duncan's 11-year-old daughter, Sonya, suffered from a genetic abnormality known as Prader-Willi syndrome ¹ and from scoliosis (or curvature of the spine). In 1981, in order to straighten the spine, she underwent complicated surgery known as the Harrington rod procedure, ² which carries with it a possibility of paralysis, because the spine and spinal cord are being moved as part of the procedure. In order to prevent paralysis, following the insertion of the Harrington rods, a procedure known as the "wake-up" test is conducted in which the patient is awakened to determine whether she can move her lower extremities. If the patient is unable to move her lower extremities during the "wake-up" test, the tension on the rods must be reduced immediately or the rods taken out completely. Prior to the surgery, because of the complexity of the surgery and because of the possibility of paralysis, Dr. Hannon gave Duncan and his wife a five-page consent form, which explained the procedure in detail, including the "wake-up" test; and Dr. Hannon also met with Duncan and his wife personally to discuss the procedure and to answer any questions they had after thoroughly reviewing the consent form. Thereafter, Duncan and his wife signed the consent form. On January 20, 1981, Sonya was admitted to Mobile Infirmary, and on that date Dr. Hannon again met with Duncan and his wife concerning the surgery, which had been scheduled for January 23.

By 12:35 p.m. on January 23, 1981, Dr. Hannon had made the incision and had placed the rods. With the incision still open, he began the "wake-up" test. At this time, the anesthesiologist terminated infusion of the anesthetizing agent and began to give Sonya oxygen. After 15-30 minutes, Sonya opened her eyes and began to move around. Intermittently, she would move her upper extremities on request, but at other times she would not. There was no voluntary movement from her lower extremity, and this fact evidenced some cortical damage.

Between 1:30 and 2:00 p.m., when Sonya still had not moved her lower extremities, Dr. Hannon decided to, and did, remove the rods; and he closed the incision. However, removal of the rods did not restore movement to Sonya's lower extremities, and Sonya was paralyzed from the chest down for the next six years, until her death. During that time, she developed decubitus ulcers ³ (which led to osteomyelitis ⁴ ) and suffered from kidney infections (which caused septicemia ⁵ and pneumonia).

Sonya died on January 6, 1987. According to the death certificate, Sonya died of respiratory arrest due to severe chronic obstructive lung disease and scoliosis. Duncan, however, contends that Sonya's death was the direct result of her paralysis, because of which, he claimed, she had developed decubitus ulcers and kidney infections, complications that, according to Duncan, are common among paraplegics and often lead to premature death. Consequently, Duncan, as Sonya's father, sued Dr. Hannon for damages based on an alleged wrongful death; and he also, individually sued Dr. Hannon for damages to compensate for his loss of Sonya's services and for the nursing services he provided Sonya. Dr. Hannon moved for a directed verdict at the close of Duncan's case and again at the close of all the evidence, contending that Duncan had failed to present evidence sufficient to raise a jury question on the issues of medical negligence and proximate cause. The trial court denied the motions. Thereafter, the jury awarded Duncan $500,000 against Dr. Hannon on Duncan's wrongful death claim and $100,000 against Dr. Hannon on Duncan's claims alleging loss of services and alleging nursing services. The trial court entered a judgment on the verdict and denied Dr. Hannon's motion for a new trial, or, in the alternative, for a judgment notwithstanding the verdict, or for a remittitur. Dr. Hannon appeals. For the reasons discussed below, we affirm in part and reverse in part and remand.

This cause of action accrued before June 11, 1987, and the action was pending in the courts of this state prior to that date; therefore the applicable standard of review is the "scintilla" rule. Ala.Code 1975, § 6-5-552, § 6-5-549, and § 12-21-12. In Bradford v. McGee, 534 So.2d 1076, 1079 (Ala.1988), this Court set out the standard of review and the law governing actions brought under the Medical Liability Act:

" ' "A motion for directed verdict or J.N.O.V. is tested against the scintilla rule, which requires that a question go to the jury 'if the evidence or any reasonable inference arising therefrom, furnishes [so much as] a mere gleam, glimmer, spark, the least particle, the smallest trace, or a scintilla in support of the theory of the complaint.' Alabama Power Co. v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975). In reviewing a trial court's ruling on these motions, the appellate court, guided by the standard of the scintilla rule, determines whether there was sufficient evidence below to produce a conflict warranting jury consideration. Baker v. Chastain, 389 So.2d 932 (Ala.1980). Like the trial court, the appellate court must view all the evidence in a light most favorable to the non-moving party. Ritch v. Waldrop, 428 So.2d 1 (Ala.1982)." '

"Peete v. Blackwell, 504 So.2d 222, 224 (Ala.1986) (quoting Hammond v. City of Gadsden, 493 So.2d 1374, 1376 (Ala.1986))."

See, also, Warren v. Ousley, 440 So.2d 1034 (Ala.1983); Hanson v. Couch, 360 So.2d 942 (Ala.1978).

Duncan does not claim that the Harrington rod procedure should not have been performed on Sonya. Rather, Duncan claims that the applicable standard of care would have required Dr. Hannon to remove the rods earlier during the course of the procedure, and that if he had done so, he would have discovered the paralysis earlier and Sonya probably would not have suffered permanent paralysis, which, Duncan says, ultimately led to Sonya's premature death.

Dr. Hannon contends that the evidence failed to establish that he deviated from the applicable standard of care; failed to establish that earlier release of the surgically placed rods probably would have prevented Sonya's paraplegia; failed to establish that Sonya's paraplegia caused her death six years later; and failed to establish the value of Sonya's services to Duncan. That is, Dr. Hannon contends that Duncan failed to prove that in 1981, when the surgery was performed, Dr. Hannon's actions were a deviation from acceptable medical practice; he contends that in fact it was not a deviation not to perform an interoperative test of motor function at all (such as the "wake-up" test), but, instead, that it was acceptable to await monitoring in the recovery room to determine whether the patient was paralyzed; that the testimony of Duncan's expert witness, when considered as a whole, did not establish a causal connection between the paralysis that occurred in 1981 and Sonya's death in 1987; that none of the facts upon which Duncan's expert witness testified were found in the records of Sonya's terminal illness; and that Duncan failed to produce evidence of the value of Sonya's services or the value of the nursing services Duncan had provided Sonya.

"Section 6-5-484, Code of Alabama (1975) [a part of the Alabama Medical Liability Act], as we have construed it, imposes a legal duty upon doctors to exercise the degree of reasonable care, diligence, and skill that reasonably competent physicians in the national medical community would ordinarily exercise when acting in the same or similar circumstances. To recover damages for an alleged breach of this duty, a plaintiff must produce evidence that establishes 1) the appropriate standard of care; 2) the doctor's deviation from that standard; and 3) a proximate causal connection between the doctor's act or omission constituting the breach and the injury sustained by the plaintiff. To present a jury question, the plaintiff must adduce some evidence indicating that the alleged negligence (the breach of the appropriate standard of care) probably caused the injury. A mere possibility is insufficient. The evidence produced by the plaintiff must have 'selective application' to one theory of causation....

" 'What was said in McClinton v. McClinton, 258 Ala. 542, 544-45, 63 So.2d 594, 597 (1952), is appropriate in this case:

" ' "Proof, which goes no further than to show an injury could have occurred in an alleged way, does not warrant the conclusion that it did so occur, where...