Holly v. Huntsville Hosp.

Decision Date16 May 2003
PartiesShelia 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.
CourtAlabama 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.

JOHNSTONE, Justice.

Introduction

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) (reversed by this Court six months after the trial of the case now before us, Ex parte Waddail, 827 So.2d 789 (Ala.2001)), 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.)

Testimony

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:

"Q. Tell me what the standard of care is, Doctor, as you understand it?
"A. Standard of care, as I understand it, is that the standard of care implies what a reasonable and prudent physician would do to evaluate and treat a patient who presents to the emergency department.
"....
"Q. Let's talk about Cameron Holly for a minute. Does the standard of care with Cameron Holly require you to take a history from his mother about his illness?
"A. Yes, sir.
"Q. And did you do that?
"A. I did.
"Q. And did you take the appropriate history that met the standard of care?
"A. Yes, sir.
"Q. Did it require that you do a physical examination?
"A. Yes, sir.
"Q. And did you do that physical examination?
"A. I did.
"Q. And did you do a thorough and appropriate physical examination for his presentation?
"A. Yes, sir.
"....
"Q. Now, let me talk to you about the literature and your course of action here. I want to show you some information from a publication, Pediatrics in Review, December 1997. One of the sections in here deals with croup and its treatment; am I correct?
"A. Yes, sir.
"Q. You've reviewed that?
"A. Yes, sir.
"Q. You consider that to be an authoritative—or reliable authoritative information with respect to the treatment of croup?
"A. Yes, sir.
"Q. `Current research suggests that children presenting with croup who are in significant distress may be treated effectively with racemic epinephrine or L-epinephrine and steroids, undergo a period of observation, and be discharged home safely if they are free of stridor and retraction and have access to appropriate follow-up care. The recommended period of observation varies from one to three hours.' Do you agree that is appropriate and acceptable care to be provided to an infant such as Cameron Holly?
"A. Yes, sir.
"Q. Would it represent one method of treatment of a patient such as Cameron that would meet the appropriate standard of care for someone taking care of a patient such as Cameron Holly?
"A. Yes, sir.
"Q. In this case, did he receive racemic epinephrine?
"A. Yes, sir.
"Q. Steroids?
"A. Yes, sir.
"Q. We haven't talked about that. He got the two shots, one was an antibiotic Rocephin?
"A. Right.
"Q. The other was Decadron, the steroid?
"A. That's correct.
"Q. So, he had received both epinephrine and steroid?
"A. Right. Yes, sir.
"Q. He had undergone a period of observation that was approximately three hours?
"A. Yes, sir.
"Q. He was free of stridor, correct?
"A. Yes, sir.
"Q. He was free of reactions?
"A. Yes, sir.
"Q. Did he have access to appropriate follow-up care?
"A. Yes, sir.
"Q. Had you arranged for that follow-up care the next day?
"A. Yes, sir.
"....
"Q. Let me see if I can find this other one. Let me show you an article from the—I believe it's Mayo Clinic—the Mayo Clinic Procedures I believe is the publication of the Mayo Clinic here. And ask you if you have reviewed that.
"A. I have.
"Q. And does it contain information that is pertinent to the treatment of a patient like Cameron Holly?
"A. Yes, sir.
"Q. And does it make a recommendation for treatment of a patient like Cameron Holly?
"A. Yes, sir.
"Q. They note, `It seems to be safe to dismiss a child who received nebulized adrenaline.' Is that racemic epinephrine?
"A. Yes, sir.
"Q. From the emergency department, if, after three to four hours of observation, the child has not stridor at rest, normal air entry, normal color, normal level of consciousness, and has received one dose of.6 milligrams per kilogram of dexamethasone. Is that Decadron?
"A. Yes, sir.
"Q. Same as what [Cameron] received?
"A. Yes, sir.
"....
"Q. And, he received that treatment?
"A. Yes, sir.
"Q. Lastly, have you reviewed an article on `The Cost Effective Use of Nebulized Racemic Epinephrine'?
"A. Yes, sir.
"Q. This one here—'In the treatment of Croup' from the American Journal of Emergency Medicine, January 1998?
"A. Yes, sir.
"Q. Does it contain reliable information, reliable authority for the treatment of patients such as Cameron Holly?
"A. Yes, sir.
"Q. Does it provide that if there is significant improvement after treatment with
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