Hauseman v. UNIV. OF ALA. HEALTH SERV. FOUNDATION

• Decision Date: 03 November 2000
• Citation: 793 So.2d 730
• Parties: Felicia H. HAUSEMAN v. UNIVERSITY OF ALABAMA HEALTH SERVICES FOUNDATION and Dr. Albert D. Pacifico.
• Court: Alabama Supreme Court

793 So.2d 730

Felicia H. HAUSEMAN v. UNIVERSITY OF ALABAMA HEALTH SERVICES FOUNDATION and Dr. Albert D. Pacifico.

1990084.

Supreme Court of Alabama.

November 3, 2000.

Rehearing Denied March 30, 2001.

Stephen D. Heninger and R. Edwin Lamberth of Heninger, Burge, Vargo & Davis, L.L.P., Birmingham, for appellant.

Randal H. Sellers and Joseph L. Reese, Jr., of Starnes & Atchison, L.L.P., Birmingham, for appellees.

BROWN, Justice.

The plaintiff, Felicia Hauseman, appeals the circuit court's summary judgment entered in favor of the defendants Dr. Albert Pacifico and the University of Alabama Health Services Foundation ("UAHSF").

Margaret B. Hicks¹ was admitted to the University of Alabama at Birmingham Hospital ("UAB Hospital") and underwent coronary by-pass surgery on August 30, 1996. Her surgeon was Dr. Albert Pacifico, who routinely performed this kind of procedure. Dr. Pacifico was assisted by his cardiovascular-surgery team, consisting of Dr. Chris Akins, the chief resident; Dr. Don Cleveland, the junior cardiac resident; and Dr. Rosensteel,² the general-surgery resident.

Mrs. Hicks's surgery was successful, and on September 4, 1996, she was discharged from UAB Hospital. However, because of Mrs. Hicks's age and frailty, she was sent to Spain Rehabilitation Center ("Spain Rehab") for cardiac rehabilitation. It was common for elderly or weak patients to be discharged from UAB Hospital to Spain Rehab for additional rehabilitation and/or supportive care. When she was transferred to Spain Rehab, Mrs. Hicks was clinically and medically stable.

Although Mrs. Hicks had been discharged from UAB Hospital, Dr. Pacifico was not "through with her care"; he was available to see Mrs. Hicks at Spain Rehab if he was called and asked to do so. Once at Spain Rehab, Mrs. Hicks was placed in the care of Dr. Christopher Kim and Dr. Chi-Tsou Huang. On September 6, Mrs. Hicks's body temperature was 103.8&;~ she also had an elevated white-blood-cell count of 14,800. On September 7, Dr. Rosensteel went to Spain Rehab and examined Mrs. Hicks. Dr. Rosensteel's note stated: "If patient's condition decompensates, will come evaluate the patient." The following day, Mrs. Hicks's white-blood-cell count rose to 16,800. Based on this, Dr. Huang suspected that Mrs. Hicks had developed some kind of infection. A note on Mrs. Hicks's chart, dated September 15, stated: "The sternal wound drains yellowish, turbid discharge quite a lot. CV [cardiovascular team] is aware of it." The next day, doctors at Spain Rehab removed the sternal staples from Mrs. Hicks's chest and pus gushed out. Dr. Huang instructed Dr. Kim to call Dr. Pacifico's team and advise them of the wound status. When Dr. Kim telephoned, he spoke with one of Dr. Pacifico's residents, who advised him that a member of Dr. Pacifico's team would come to see Mrs. Hicks. On September 17, Dr. Huang noted in Mrs. Hicks's chart: "patient wants CV surgery to come and check her wound." The next day, Dr. Huang spoke with Dr. Akins, who told him that a member of Dr. Pacifico's team would come and check Mrs. Hicks. Dr. Huang made several additional notes on Mrs. Hicks's chart concerning requests to the cardiovascular-surgery team to examine Mrs. Hicks and the team's failure to do so.

All of the telephone calls made by Drs. Kim and Huang requesting that the cardiovascular-surgery team see Mrs. Hicks were made to resident physicians only; no calls were ever made directly to Dr. Pacifico. Dr. Pacifico did not know that the physicians at Spain Rehab had requested that a physician from the cardiovascular-surgery team see Mrs. Hicks. Dr. Pacifico did not see Mrs. Hicks after her discharge from UAB Hospital on September 4, nor did he have any conversations with any of the physicians at Spain Rehab or any of the cardiovascular-surgery-service residents about Mrs. Hicks after her discharge from UAB Hospital on September 4. Dr. Pacifico testified during his deposition that if anyone from his team had seen Mrs. Hicks, that person would have recommended that a plastic surgeon be called in to consult. According to Dr. Pacifico, this would be the specialist best suited for the surgical management of a sternal-wound infection.

Mrs. Hicks was seen by personnel from the infectious-disease and plastic-surgery services on September 19 and 20, respectively. Mrs. Hicks was determined to have a sternal-wound infection. On September 21, 1996, Mrs. Hicks was transferred from Spain Rehab to UAB Hospital. Mrs. Hicks's sternal-wound infection was managed by the plastic-surgery service, rather than the cardiovascular-surgery service. Mrs. Hicks underwent surgical treatment for the sternal-wound infection on September 24 and again on September 27. On October 24, Mrs. Hicks died of multiorgan system failure secondary to sepsis.

On March 15, 1997, Felicia Hauseman, Mrs. Hicks's daughter and administrator of her estate, filed a medical-malpractice action against UAHSF, Dr. Pacifico, Dr. Kim, and Dr. Huang. Each defendant moved for a summary judgment. On May 25, 1999, the trial court granted Dr. Huang and Dr. Kim's motions for summary judgment, and entered a final judgment for those defendants, pursuant to Rule 54(b), Ala.R.Civ.P. No notice of appeal was filed from that judgment.

On September 23, 1999, the trial court issued the following order with regard to UAHSF and Dr. Pacifico's motion for summary judgment:

"ORDER

"This matter is before the Court on the Motion for Summary Judgment filed by defendants University of Alabama Health Services Foundation, P.C., and Albert D. Pacifico, M.D.

"Defendants contend that they have absolute or qualified immunity. Plaintiff contends that Dr. Pacifico is liable for his own negligence and for the negligence of the residents under his supervision and control.

"Plaintiff contends that the residents were loaned or borrowed servants and they were working for Dr. Pacifico and not for UAB. Plaintiff further contends that the residents were not performing a discretionary public function. Plaintiff argues that the treatment was at a private hospital and, therefore, there was no public function.

"It appears from the evidence presented that the residents were performing a discretionary function in the care and treatment of the patient. The evidence is that the residents were performing duties through the residency program at UAB.

"It appears to this Court that there was qualified or discretionary immunity for such residents. Where the agent is not liable, the principal cannot be held liable either. Gore v. City of Hoover, 559 So.2d 163 (Ala.1990). Therefore, Dr. Pacifico could not be held liable for the negligence of the residents where they have immunity.

"Plaintiff also contends that Dr. Pacifico should be held liable for his own negligence by failing to continue the treatment of the patient. Plaintiff contends that Dr. Pacifico had a duty to make sure `that if something goes wrong with some of his patients, he's going to know about it.'

"In McKowan v. Bentley, 773 So.2d 990 (Ala.1999), it was held that where the doctor knew of the patient's postoperative infection and did not properly manage her post-operative care, he could be liable.

"The rule is that when a physician has undertaken the treatment of a patient whose condition, known to the physician, is such that without continuous or frequent expert attention, he is likely to suffer injurious consequences, he must either render such attention himself or see that some other competent person does so. Jackson v. Burton, 226 Ala. 483, 147 So. 414 (1933).

"In this case there is no evidence that Dr. Pacifico knew of the patient's postoperative condition which required further attention.

"Therefore, the Motion for Summary Judgment filed by the defendants University of Alabama Health Services Foundation and Albert D. Pacifico, M.D., are granted."

(R. 263-64.)

On October 5, 1999, Hauseman filed a notice of appeal from the summary judgment for UAHSF and Dr. Pacifico.

Because this appeal is from a summary judgment, our review is governed by the following standard:

"In reviewing the disposition of a motion for summary judgment, `we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,' Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was `entitled to a judgment as a matter of law,' Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala.R.Civ.P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is `substantial' if it is of `such weight and quality that fairminded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990)."

Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997).

I.

Hauseman contends that the summary judgment for UAHSF and Dr. Pacifico was improper as to her malpractice claim against Dr. Pacifico based on his own acts and omissions.

"To prove liability in a medical malpractice case, the plaintiff must prove (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." Looney v. Davis, 721 So.2d 152, 157 (Ala.1998). See Complete...