Ivy v. Carraway

• Decision Date: 18 September 2009
• Docket Number: 1051539.
• Citation: 32 So.3d 1247
• Parties: Carlos IVY v. Robert CARRAWAY, M.D.
• Court: Alabama Supreme Court

32 So.3d 1247

Carlos IVY v. Robert CARRAWAY, M.D.

1051539.

Supreme Court of Alabama.

September 18, 2009.

R. Andrew McKinney of Hayes, Jackson, Weaver & McKinney, PC, Birmingham, for appellant.

Joseph S. Miller and J. Wilson Axon, Jr., of Starnes & Atchison LLP, Birmingham, for appellee.

MURDOCK, Justice.

Carlos Ivy appeals from a judgment as a matter of law entered by the Jefferson Circuit Court in favor of Robert Carraway, M.D., on Ivy's medical-malpractice claim. We affirm.

I. Facts and Procedural History

On October 13, 2002, Ivy was struck by a motor vehicle and sustained a severe injury to his right thigh. Ivy sought treatment for his injury at the emergency room at Carraway Methodist Medical Center ("the hospital"). After a physical examination and X-rays, Ivy was diagnosed with a large contusion to his right thigh. He was given prescription medications and was discharged.

Ivy returned to the hospital's emergency room on October 30, 2002, because he had experienced increased swelling and pain from the injury following his discharge. A CT scan revealed a large collection of fluid on the front middle portion of the right thigh. Ivy was diagnosed with an infected hematoma and necrotic cellulitis. Because of the severity of the infection, Ivy was admitted to the hospital and antibiotics were administered. The night of Ivy's admission, Dr. Robert Stinson performed an irrigation and debridement procedure during which he made an incision into the wound, drained fluid from it, and removed dead skin tissue in order to reduce the swelling and clean the infected area.

Following the procedure, the open cavity of the wound was packed with rolls of Kerlix gauze. Kerlix gauze is a clean dressing commonly used to "pack," i.e., to plug and absorb drainage, in large wounds. It is manufactured in rolls that are typically 2 to 4 inches wide and 12 feet long.¹ Testimony at trial explained that packing a large wound is done by placing an entire roll of gauze into the wound, but leaving a "tail" of the gauze protruding from the wound. The gauze is removed by pulling on the protruding "tail" until the gauze is extracted from the wound site.

After the initial irrigation and debridement procedure, Ivy was referred to the services of Dr. Carraway, a board-certified general surgeon. On October 31, 2002, Dr. Carraway performed a second irrigation and debridement procedure. Dr. Carraway testified that before he entered the operating room, the nurses had prepped Ivy's wound for surgery, including removing all the gauze from the site. He stated that he visually inspected the site before starting the procedure and that he did not notice any foreign objects. Dr. Carraway removed more dead tissue from the site and cleaned it. Dr. Carraway testified that upon completing the procedure he again visually inspected the wound and felt inside the cavity with his fingers to ensure that it was clean and that no foreign objects remained in it. He also asked for and received a correct needle and sponge count from the nurses. Dr. Carraway stated that he did not use Kerlix gauze during the operation, that Kerlix gauze is not used in surgeries, and that it is not included in the count taken at the end of a surgical operation.

Following the surgery, an open cavity remained at the wound site measuring approximately seven inches by six inches and varying in depth. After Dr. Carraway left the operating room, the nurses again packed the wound cavity with Kerlix gauze. Ivy remained hospitalized, and Dr. Carraway ordered certain treatment for the wound infection, including whirlpool therapy and more antibiotics.

Dr. Carraway ordered the whirlpool therapy to be carried out twice every weekday and once a day on weekends. This whirlpool treatment required the removal of the Kerlix gauze so that the wound site would soak uninhibited in the whirlpool. At the end of each treatment, the wound was repacked with Kerlix gauze. Residents and hospital nurses performed the packing and unpacking of Ivy's wound before and after the whirlpool-therapy sessions. Dr. Carraway testified that he never packed and unpacked Ivy's wound; Ivy did not contradict this testimony.

On November 5, 2002, Dr. Carraway performed a third irrigation and debridement procedure. Dr. Carraway again testified that to his knowledge the Kerlix gauze packed into the cavity had been removed by the nurses before he entered the operating room. He also stated that he "inspected" the cavity for foreign objects before beginning the procedure. After removing dead tissue and cleaning the wound, Dr. Carraway visually and manually inspected the site, and he did not see anything that would suggest that a foreign object remained in the cavity. Dr. Carraway also testified that he once again asked for and received a correct needle and sponge count from the nurses. After Dr. Carraway left the operating room, the nurses again packed the cavity with Kerlix gauze.

Ivy continued to undergo whirlpool therapy, and, as before, the wound cavity was unpacked before he received the treatment and repacked with gauze after each treatment. Dr. Carraway stated that he personally never unpacked or repacked the cavity during these treatments.

On November 8, 2002, Dr. Carraway performed a split-thickness skin-graft procedure on Ivy. As with the previous operations, Dr. Carraway testified that to his knowledge the wound cavity was unpacked and prepped before he entered the operating room. He then performed a visual inspection of the site before beginning the procedure, and he did not see anything suggesting the presence of a foreign object in the cavity. Dr. Carraway first performed another debridement and irrigation of the site. He then performed the skin graft to cover the site. After completing this process, Dr. Carraway again asked for and received a correct count of the needles and sponges used in the operation. Because the cavity was closed by the skin graft, it was not repacked with Kerlix gauze upon completion of this procedure. The wound continued to heal, and Ivy was discharged from the hospital on November 13, 2002.

Ivy saw Dr. Carraway on four post-surgery visits. During his final follow-up examination on January 14, 2003, Dr. Carraway noted that Ivy's right knee was swollen and that Ivy was experiencing pain and loss of motion in the knee. Dr. Carraway ordered an MRI of Ivy's right knee. Because Ivy's medical insurance had lapsed, he was told by hospital personnel that he needed to have the MRI performed at Cooper Green Medical Center ("Cooper Green").

Ivy was admitted to Cooper Green on January 14, 2003. Dr. Phillip Johnson examined Ivy the following day and discovered that the swollen area above Ivy's right knee was infected. Dr. Johnson diagnosed Ivy with cellulitis and placed him on a regimen of antibiotics. On January 16, 2003, Dr. Johnson performed exploratory surgery on the swollen area above Ivy's right knee. During the surgery, Dr. Johnson made an incision "longitudinally over the area of maximal swelling and carried through the skin into the cavity."² Dr. Johnson drained infected fluid from the area and removed a length of Kerlix gauze from the abscess approximately 10 feet long. Dr. Johnson performed another surgery on Ivy the following day to explore the cavity for additional foreign materials and to change the dressing. He did not find other foreign objects and noted that the wound was starting to heal. On January 20, 2003, Ivy was discharged from Cooper Green.

On October 22, 2004, Ivy filed a complaint in the Jefferson Circuit Court against the hospital and Dr. Carraway, alleging that the defendants had violated the standard of care as evidenced by the Kerlix gauze discovered by Dr. Johnson inside Ivy's right leg. The defendants timely answered the complaint, and, following discovery, both defendants filed motions for a summary judgment. On April 17, 2006, the trial court entered an order granting the hospital's motion for a summary judgment.

Ivy's claims against Dr. Carraway proceeded to trial on June 5, 2006. The jury heard testimony from Ivy, his wife, and Dr. Carraway, and the deposition of Dr. Johnson was read into the record. At the close of Ivy's presentation of evidence. Dr. Carraway filed a motion for a judgment as a matter of law. The trial court granted the motion and entered an order on June 12, 2006, stating that "the evidence was insufficient to permit a finding of any negligence or breach of the applicable standard of care on the part of Dr. Carraway and that the evidence was insufficient to show that any conduct of Dr. Carraway was the proximate cause any injury to Ivy."

Ivy initially appealed both the summary judgment in favor of the hospital and the judgment as a matter of law in favor of Dr. Carraway. Ivy voluntarily dismissed his appeal of the summary judgment, however. This appeal concerns only Ivy's medical-malpractice claim against Dr. Carraway.

II. Standard of Review

"`When reviewing a ruling on a motion for a judgment as a matter of law, this Court uses the same standard the trial court used initially in granting or denying the judgment as a matter of law. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case or issue to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). The nonmovant must present substantial evidence to withstand a motion for a judgment as a matter of law. See § 12-21-12, Ala.Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a judgment as a matter of law, this Court views the evidence

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