Jawad v. Granade

• Decision Date: 26 September 1986
• Citation: 497 So.2d 471
• Parties: Muhammed A. JAWAD v. Sophia P. GRANADE. 84-933.
• Court: Alabama Supreme Court

Page 471

497 So.2d 471

Muhammed A. JAWAD v. Sophia P. GRANADE.

84-933.

Supreme Court of Alabama.

Sept. 26, 1986.

Rehearing Denied Nov. 7, 1986.

W. Boyd Reeves and Edward A. Dean of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, Wyman O. Gilmore, Grove Hill for appellant.

Edward P. Turner, Jr., and Halron W. Turner of Turner, Onderdonk & Kimbrough, Chatom, for appellee.

HOUSTON, Justice.

Sophia P. Granade filed suit against Muhammed A. Jawad, M.D., alleging professional negligence in connection with Dr. Jawad's reduction and treatment of a Colles's fracture in Mrs. Granade's left wrist. After a two-day trial the case was submitted to the jury, which returned a verdict for Dr. Jawad. Mrs. Granade filed a motion for a new trial, stating as her only ground: "[T]he verdict is against the great weight and preponderance of the evidence." The trial court granted Mrs. Granade's motion for new trial, and Dr. Jawad appealed.

The only legal issue presented at trial that bears upon this appeal is whether Dr. Jawad's failure to X-ray Mrs. Granade's wrist, after the fracture was reduced, but before the cast was removed, constituted a deviation from the medically accepted practice and procedure for the treatment of a Colles's fracture. The evidence is undisputed that Dr. Jawad did X-ray Mrs. Granade's wrist immediately after the cast was placed on her wrist and that the X-ray showed that the bone was properly aligned. Dr. Jawad did not thereafter X-ray Mrs. Granade's wrist until the cast was removed 31 days later. At this time Dr. Jawad found that the fracture had displaced backward. Thereafter, Mrs. Granade was treated by orthopedic surgeons. At the time of his treatment of Mrs. Granade, Dr. Jawad was a licensed and board certified general surgeon with a subspecialty in vascular surgery.

Mrs. Granade proffered two medical experts at trial to establish the proper medical procedure for the treatment of a Colles's fracture following reduction and casting. The following is the pertinent testimony of one of Mrs. Granade's medical experts:

"Q Doctor, in your expert opinion, does not having X-rayed Ms. Granade's wrist from December 1, 1979, until January the 11th, 1980, comply with the accepted standards for the treatment of a Colles' fracture by physicians in the same general neighborhood as Jackson, Alabama and the state of Alabama and for a doctor in the same general line of practice?

"A For an orthopaedic surgeon, I would say no.

"....

"Q Well, Doctor, in your expert opinion, would not having X-rayed a wrist such as Ms. Granade's for a period from December the 1st, 1979, until January the 11th, 1980, a period of some over five weeks, would that type procedure not comply with the accepted standards for treatment of a Colles' fracture?

"A In my opinion, that's inadequate care of a Colles' fracture, yes."

The following is the pertinent medical testimony of Mrs. Granade's other medical expert:

"Q Now, Doctor ..., in your opinion, after Doctor Jawad saw Mrs. Granade on December 1st, 1979, and X-rayed her and reduced the fracture and put a cast on her; failed to X-ray her again on the 6th [of December], failed to X-ray her again on the 21st [of December], and finally X-rayed her again some six weeks after the closed reduction; in your opinion is that departure from acceptable medical practice?

"A. Yes, sir."

Dr. Jawad, after being duly qualified as a medical expert, testified in his own defense as such an expert. His testimony regarding the standard of care was as follows:

"Q Doctor, from your practice in Clarke County [Alabama], in Ocala, Florida, [and in] Illinois, do you have an opinion whether or not you deviated from the standard of care for this type injury--do you have an opinion?

"A Yes.

"....

"Q What is your opinion whether or not you deviated from the standard of care?

"A I didn't deviate from the standard of care.

"Q You are familiar with the standard of care in Chicago, Clarke County and Florida ... been familiar with it since 1979?

"A Right.

"....

"Q Doctor, what you did is what you have known other doctors to do in the same area that you practiced since 1979 here in this state, isn't it?

"A Right."

There was credible testimony that Dr. Jawad did not deviate from the standard of care used by physicians in Clarke County, Alabama, where the treatment was given. Where the plaintiff, who would have the burden of proof, is himself or herself a medical expert qualified to evaluate the physician's conduct, we have held that the plaintiff's testimony is sufficient to meet the plaintiff's burden of proffering expert medical testimony as to what is or is not the proper practice, treatment, or procedure. Holt v. Godsil, 447 So.2d 191 (Ala.1984); Lamont v. Brookwood Health Services, Inc., 446 So.2d 1018 (Ala.1983). Likewise, the jury could rely on the testimony of the defendant physician, who was duly qualified as a medical expert, that he used proper practice, treatment, or procedure in treating the plaintiff. The mere fact that this was the only expert medical testimony offered by Dr. Jawad as to the standard of medical care does not convince this Court that the jury's verdict was so against the great weight and preponderance of the evidence as to be clearly wrong.

Even given the testimony of Mrs. Granade's well qualified medical experts, we conclude that the great weight of the evidence does not plainly and palpably show that the trial court was in error in granting the new trial; and, using parallelism, we cannot hold that the overwhelming weight of evidence supports the jury's verdict.

Though the standard, heretofore applicable, for reviewing a trial court's order granting a new trial on the ground that the jury's verdict is against the great weight and preponderance of the evidence, has been frequently criticized, and was for a time rejected by the former Court of Appeals, this Court apparently has followed it faithfully.

That standard heretofore applied in this state has been that the trial court's decision granting a new trial on the ground that the jury's verdict is against the great weight and preponderance of the evidence will not be disturbed unless the evidence plainly and palpably supports the verdict. Groom v. Reynolds, 396 So.2d 690 (Ala.1981); Hubbard Bros. Const. Co. v. C.F. Halstead Contractor, Inc., 294 Ala. 688, 321 So.2d 169 (1975); Cobb v. Malone, 92 Ala. 630, 9 So. 738 (1891).

The rule which we have heretofore adhered to was originally enunciated in Cobb v. Malone, a case which specifically concerned review of the trial court's order overruling a motion for new trial. That rule, dictum though it was, appeared as follows:

"[T]he decision of the trial court, refusing to grant a new trial on the ground of the insufficiency of the evidence, or that the verdict is contrary to the evidence, will not be reversed, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust. And decisions granting new trials will not be reversed, unless the evidence plainly and palpably supports the verdict...." (Emphasis added.)

Id., 92 Ala. at 635, 9 So. at 740. Hereinafter this last sentence shall be referred to as the "Cobb standard." ¹

The Cobb dictum regarding the standard of review for the granting of motions for new trial by trial courts on the ground that the verdict was against the great weight or preponderance of the evidence was first applied as a rule in Merrill v. Brantley & Co., 133 Ala. 537, 539, 31 So. 847 (1902). Eleven years later, in Anderson v. Southern Railway Co., 184 Ala. 468, 469, 63 So. 473 (1913), this Court reasoned that the Cobb standard was necessary because "the trial judge had the opportunity of seeing the witnesses and hearing the evidence--[an opportunity] of which we are deprived," and so could exercise better judgment than an appellate court in determining whether to grant a new trial. In the case of Hatfield v. Riley, 199 Ala. 388, 74 So. 380 (1917), the Cobb standard of review was tested against a 1915 legislative enactment that no presumption in favor of the correctness of a judgment granting or refusing a new trial should be indulged by the appellate courts. In Hatfield, this Court held that the Cobb presumption in favor of the trial court's ruling was not changed by the legislative enactment. This Court in Cook v. Sheffield Co., 206 Ala. 625, 91 So. 473 (1921), made it clear that there was no distinction, in this Court's standard of review, between orders granting, and those denying, new trials on the ground that the verdict was against the great weight or preponderance of the evidence. This holding was reaffirmed in Ex parte Landers, 214 Ala. 20, 106 So. 225 (1925), and later in Lindsay Products Corp. v. Alabama Securities Corp., 247 Ala. 662, 25 So.2d 852 (1946).

This Court reinforced the Cobb standard in King v. Scott, 217 Ala. 511, 116 So. 681 (1928), by holding that when an order granting a new trial on the ground that the verdict was against the great weight of the evidence is appealed, the record must be construed against the appellant.

The Court reaffirmed the Cobb standard in Reed v. Thompson, 225 Ala. 381, 143 So. 559 (1932). Five years later, in W.M. Templeton & Son v. David, 233 Ala. 616, 173 So. 231 (1937), Justice Bouldin, writing for one division of this Court, attacked the Cobb line of cases. He wrote:

"It may be strongly argued that logically the same presumption should not be indulged on appeal in favor of the action of the trial court overturning a verdict of a jury on issues of fact, as in cases where the verdict is sustained.

"The trial court should indulge all reasonable presumptions in favor of the verdict of the jury, and unless on full consideration he is convinced by the great weight of the evidence that the verdict is wrong, it should not be disturbed.

"The jury is the law...