Holly v. Huntsville Hosp.
Decision Date | 16 May 2003 |
Parties | Shelia HOLLY and Leroy Holly, as parents and next friends of Cameron Holly, a deceased minor v. HUNTSVILLE HOSPITAL and Dr. John Edward Markushewski, Jr., M.D. |
Court | Alabama Supreme Court |
Shay Samples and Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham; and Maureen K. Cooper of Morris, Conchin, Banks & Cooper, Huntsville, for appellants.
Stanley Rodgers, Daniel F. Beasley, and Jeffrey T. Kelly of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellees.
The plaintiffs, Shelia Holly and Leroy Holly, parents of Cameron Holly, appeal the judgment on the jury verdict in favor of the defendants Huntsville Hospital and Dr. John Edward Markushewski, Jr., in the medical malpractice action of the plaintiffs. We reverse and remand.
On October 6, 1997, Shelia Holly took her eleven-month-old son Cameron to the emergency room at Huntsville Hospital because he had a high fever, a high pulse rate, and trouble breathing. Dr. Markushewski, who was board-certified in family practice, was working in the emergency room when the Hollys arrived at the hospital. Dr. Markushewski treated Cameron for croup, observed him for three hours, gave Shelia a prescription for Cameron, and then released him to go home. After Shelia left the hospital, she went to a Winn Dixie pharmacy to get Cameron's prescription filled. While at the pharmacy, Cameron went into respiratory arrest and then into cardiac arrest. Emergency medical technicians, responding to a 911 emergency call, transported Cameron to Huntsville Hospital, where he was pronounced dead. An autopsy of Cameron indicated that he died of necrotizing tracheobronchitis (severe tracheitis and bronchitis), a severe infection of the trachea and bronchi that obstructed his airway.
The plaintiffs sued Huntsville Hospital and Dr. Markushewski for medical malpractice. To prove medical negligence, the plaintiffs offered expert medical testimony by Dr. Mark Weber, who was board-certified in pediatrics, in emergency medicine, and in pediatric emergency medicine, and Dr. Lance Kreplick, who was board-certified in emergency medicine. The defendants objected to expert testimony from Dr. Weber and Dr. Kreplick on the ground that they were not "similarly situated" with Dr. Markushewski in that neither Dr. Weber nor Dr. Kreplick was board-certified in family practice as Dr. Markushewski was.
Relying on Waddail v. Roberts, 827 So.2d 784 (Ala.Civ.App.2000) ( ), the trial court held that, because Dr. Weber and Dr. Kreplick were not board-certified in family practice like the defendant Dr. Markushewski, they were not "similarly situated" with Dr. Markushewski and therefore were not competent to testify to the standard of care and the breach of that standard alleged by the plaintiffs. While the trial court allowed Dr. Weber and Dr. Kreplick to testify to causation, the trial court instructed the jury that these expert witnesses were not qualified to testify to the standard of care or to a breach of that standard. Further relying on Waddail v. Roberts, the trial court also instructed the jury that the standard of care applicable to Dr. Markushewski was the standard of care applicable to family practice physicians.
The jury returned a verdict in favor of the defendants. The plaintiffs moved for a new trial. The trial court denied the motion and entered a judgment on the jury verdict in favor of the defendants.
On appeal, the plaintiffs argue that Waddail v. Roberts, followed by the trial court in excluding testimony by the plaintiffs' expert witnesses on standard of care and breach of that standard, and cited by the trial court in instructing the jury on the competency of the plaintiffs' expert witnesses and on the standard of care applicable to the defendant doctor, was wrongly decided. The plaintiffs argue to us, as they did before the trial court, that the standard of care applicable to the defendant doctor was the standard applicable to a doctor practicing emergency medicine, as the defendant Dr. Markushewski was in treating Cameron. The plaintiffs argue, therefore, that the trial court erred to reversal in excluding the plaintiffs' experts' testimony to standard of care and breach of that standard and in instructing the jury on the plaintiffs' experts' competency and on the applicable standard of care. The defendants argue that any error by the trial court was harmless because "Dr. Markushewski himself provided the same testimony the plaintiffs' experts would have provided concerning the standard of care, and this testimony was sufficient to establish a jury question whether Dr. Markushewski breached the standard of care." (Appellees' brief, p. 7.)
In the plaintiffs' case-in-chief, they called the defendant Dr. Markushewski as an adverse witness. On direct examination, he testified that he was board-certified in family practice but was not board-certified in emergency medicine. He testified further that, when he treated Cameron, he was "working in the emergency room practicing emergency medicine" and was "not [working] as a family practice doctor." (R. 10.) Dr. Markushewski admitted that he had not obtained a complete history of Cameron's illness, had treated him for croup rather than for necrotizing tracheobronchitis, had not admitted him to the hospital, had not intubated him to protect his airway, and had not recorded his vital signs before discharging him. Dr. Markushewski further admitted that tracheitis, a part of tracheobronchitis, requires admission to the hospital and intubation of the patient to protect his airway.
On cross-examination by defense counsel, Dr. Markushewski testified about the standard of care to be met by a doctor practicing emergency medicine:
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