Johnson v. McMurray

• Decision Date: 07 September 1984
• Parties: Lavoid D. JOHNSON and Pauline Johnson v. James G. McMURRAY, et al. 82-413.
• Court: Alabama Supreme Court

Page 775

461 So.2d 775

Lavoid D. JOHNSON and Pauline Johnson v. James G. McMURRAY, et al.

82-413.

Supreme Court of Alabama.

Sept. 7, 1984.

As Modified on Denial of Rehearing

Nov. 9, 1984.

Joseph M. Cloud of Cloud & Cloud, and Robert H. Ford of Brinkley & Ford, Huntsville, for appellants.

Harold F. Herring, H. Harold Stephens, and William W. Sanderson, Jr. of Lanier, Shaver & Herring, Huntsville, for appellee James G. McMurray.

John S. Key of Eyster, Key, Tubb, Weaver & Roth, Decatur, for appellee James H. Griffith, M.D.

Michael A. Worel of Emond & Vines, Birmingham, for amicus curiae The Alabama Trial Lawyers Ass'n.

JONES, Justice.

This is a medical malpractice case. Plaintiffs/Appellants Lavoid D. and Pauline Johnson appeal from a judgment for Defendants Dr. James G. McMurray and Dr. Thomas G. Griffith, following a jury verdict. We reverse and remand.

FACTS

In May 1979, Lavoid Johnson, 68 years old, was referred by his family physician to Dr. James G. McMurray, a Huntsville urologist, for treatment of heart complications, emphysema, and swelling of the ankles, legs, and feet. After tests were performed, Mr. Johnson's condition was diagnosed as a benign enlarged prostate, for which he was hospitalized. Upon removal of the prostate tissue and further examination, Dr. McMurray discovered "two nodules of well-differentiated carcinoma," or cancer.

During the lymph node surgery, a 4"' X 4"' surgical sponge was left in Mr. Johnson's lower abdomen. On August 28, 1979, Dr. McMurray advised Mr. Johnson of the presence of the sponge, as well as the need for its immediate removal. Because he objected to Dr. McMurray's participation in the sponge removal surgery, Mr. Johnson requested, through his lawyer, that Dr. McMurray recommend other surgeons for the surgery. Dr. McMurray did so, and Mr. Johnson chose Dr. Thomas Griffith, a Huntsville urologist.

The testimony is in conflict as to the extent of Dr. McMurray's involvement in the operation to remove the sponge. Mrs. Johnson testified that she told Dr. McMurray on three separate occasions that he was not to participate in any way in her husband's surgery. Dr. Griffith testified that he told the Johnsons that he would not perform the operation unless Dr. McMurray was present during the surgery for assistance, and that the Johnsons did not object to his presence. According to the hospital report, Dr. McMurray signed as chief surgeon for the sponge removal operation. Also, Dr. McMurray's name appears on the operating room registry and he dictated the operating report. Additionally, the record is clear that Mr. Johnson refused to sign a consent form with Dr. McMurray's name on it, but did sign the form with Dr. Griffith's name designated as the surgeon. The form reads, in pertinent part, as follows:

"1. I, Lavoid D. Johnson, the

(Patient, or nearest relative)

undersigned, authorize Dr. T. Griffith

(Physician)

and his assistant to perform, under

anesthetic deemed advisable, the operation

stated above on Lavoid D. Johnson,

(Name of patient)

and also, to perform such additional procedures as may be considered therapeutically necessary, based upon the findings in the course of the operation. Any tissue surgically removed may be disposed of by the physician, or assisting physician, or the hospital, in accordance with its accustomed practice.

"(Signed) Lavoid D. Johnson"

Shortly after the sponge removal surgery, Mr. Johnson was released from the hospital. He did not see Dr. Griffith after discharge, but did see Dr. McMurray. Throughout the remainder of 1979, he suffered from kidney infections and swelling in his legs. Upon his readmission to the hospital in December, it was discovered that the blood supply in his leg had been restricted, necessitating the amputation of his leg on January 1980.

STATEMENT OF THE CASE

The Johnsons filed suit against Dr. McMurray (later amended to include Dr. Griffith) alleging fraud, conspiracy to commit fraud, assault and battery, conspiracy to commit assault and battery, negligence, and wantonness. ¹ The trial court, at the conclusion of all the evidence, directed a verdict as to both Defendants on the Plaintiffs' claims of fraud and conspiracy to commit fraud. The jury returned a verdict in favor of both Defendants on the remaining claims. This appeal followed.

THE DISPOSITIVE ISSUE

The primary issue presented on appeal is whether the trial court erred in directing a verdict for Defendants on the claims of fraud and conspiracy to commit fraud. ²

Appellants' claim of error on this issue is grounded on Code 1975, § 6-5-102, which provides:

"Suppression of a material fact which the party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case."

DECISION

Although the "Alabama Medical Liability Act" does not explicitly include fraudulent concealment as a cause of action, this Court has recognized such a cause of action against a physician and hospital in Horn v. Citizens Hospital, 425 So.2d 1065 (Ala.1982). The plaintiff in Horn began experiencing abdominal pain in 1972--one year following her appendectomy. It was not until 1979 that X-rays revealed the presence of a needle remnant at the site of the appendectomy. The trial court granted the defendants' motion for summary judgment based solely on the statute of limitations defense. This Court affirmed, reasoning, under the facts of that case, that § 6-5-482(b), by its own terms, had pre-empted the fraudulent concealment statute of limitations and set the outer limits for the commencement of the action at four years.

Nevertheless, in its rationale for so holding, the Horn Court recognized fraudulent concealment as the basis for a medical malpractice context cause of action. Moreover, we find no justification for not following the traditional rules of statutory construction, which mandate that the two statutes--s 6-5-102 and § 6-5-482--be construed in pari materia. Certainly, the holding in Horn --that the express wording of § 6-5-482 precluded the operation of § 6-5-102 as against the contention that the latter statute extended the statute of limitations--does not suggest that the medical malpractice statute has abrogated fraudulent concealment as the basis for a cause of action. To the same extent, see Benefield v. F. Hood Craddock Clinic, 456 So.2d 52 (Ala.1984). ³

Although silence ordinarily does not constitute fraud, in dealings between persons standing in a confidential relationship, the law, as codified in § 6-5-102, imposes an obligation on the part of the one to safeguard the interests of the other; and the withholding of material facts is a breach of that duty and constitutes actionable fraud. Chapman v. Rivers Construction Co., 284 Ala. 633, 227 So.2d 403 (1969).

This Court has determined that the relationship between a doctor and his patient is a "confidential" one. Hudson v. Moore, 239 Ala. 130, 194 So. 147 (1940). The policy considerations for confidentiality in the doctor/patient relationship are grounded in the necessity on the part of the patient to fully disclose to his doctor all information essential to the patient's proper diagnosis and treatment, and in the corresponding duty on the part of the doctor to fully disclose to the patient facts necessary to enable the patient to intelligently exercise his right to control, to the extent feasible, his own health care. The Johnsons ground their claim for fraudulent suppression on the doctors' failure to inform them that Dr. McMurray would perform, or participate in, the sponge removal operation on Mr. Johnson. They point to the tendencies of the evidence indicating that Dr. Griffith knew that Mr. Johnson did not want Dr. McMurray to take any part in the second operation; and, yet, that at all times, both doctors intended for Dr. McMurray to participate in the surgery.

Additionally, they contend that the jury could reasonably infer from the evidence that Dr. McMurray failed to inform the Johnsons that he would be participating in This evidence, coupled with the undisputed fact that Mr. Johnson rejected Dr. McMurray's initial offer to perform the removal surgery, sought out Dr. Griffith for that purpose, and declined to sign Dr. McMurray's consent form, is sufficient to support the Johnsons' claims for fraud.

the surgery, knowing that the Johnsons were adamant about his nonparticipation. At the same time, contend the Johnsons, Dr. McMurray intended to participate in the operation, with or without Mr. Johnson's consent; and that if he could not convince Mr. Johnson to sign the consent form with his name on it, then he would convince Mr. Johnson to sign the form with Dr. Griffith's name on it, knowing that he would perform, or participate in, the surgery, under the guise of being Dr. Griffith's "assistant," as designated by Dr. Griffith's consent form.

Finally, the Appellees' insistence that the trial court properly directed a verdict as to the fraud claims, because of the missing element of damages, is misplaced. If the jury is reasonably satisfied from the evidence that Mr. Johnson's right to withhold consent to Dr. McMurray's active participation in the removal operation was violated, then it is for the jury to determine what damages, if any, Mr. Johnson suffered. If the jury finds actual damages, its award, within its discretion, may also include punitive damages.

The point to be emphasized here is that, if the jury finds the requisite element of damages, it is not precluded, as a matter of law, from awarding damages for fraudulent concealment of Dr. McMurray's participation, even if it also finds that the removal surgery was successful and did not contribute to Mr. Johnson's subsequent loss of his leg. Such latter finding, if made by the jury, may be considered in its assessment of damages on the fraud claim, but it is not controlling. In other words, our holding does...