L.K.D.H. v. Planned Parenthood of Alabama

• Decision Date: 26 May 2006
• Docket Number: 2040661.
• Citation: 944 So.2d 153
• Parties: L.K.D.H., individually and as next friend of J.L.D., a minor v. PLANNED PARENTHOOD OF ALABAMA, INC.
• Court: Alabama Court of Civil Appeals

944 So.2d 153

L.K.D.H., individually and as next friend of J.L.D., a minor v. PLANNED PARENTHOOD OF ALABAMA, INC.

2040661.

Court of Civil Appeals of Alabama.

May 26, 2006.

Robert M. Echols, Jr., Birmingham, for appellant.

Charles A. McCallum III and Eric D. Hoaglund of McCallum, Hoaglund, Cook & Irby, L.L.P., Vestavia Hills, for appellee.

MURDOCK, Judge.

L.K.D.H., as next friend of her minor daughter, J.L.D., appeals from a summary judgment entered against her in that capacity and in favor of Planned Parenthood of Alabama, Inc. L.K.D.H. also appeals from a separate summary judgment entered against her individually, and in favor of Planned Parenthood.

In January 2002, L.K.D.H., individually and as next friend of J.L.D., filed a complaint in the Jefferson Circuit Court alleging claims of negligence and willful or wanton conduct against Planned Parenthood. The claims arose out an abortion procedure performed on L.K.D.H. in June 1999 when she was pregnant with J.L.D. The procedure allegedly injured both L.K.D.H. and J.L.D. According to answers to interrogatories, J.L.D. was born with "a hole in her heart" and an "inverted tube that led from her lungs to her heart causing her body not to be able to receive enough oxygen."

As to the claims asserted on behalf of J.L.D., L.K.D.H. alleged that Planned Parenthood "was operating or causing to be operated a medical treatment facility in Jefferson County, Alabama, [and that it] provided medical treatment to [L.K.D.H.] which injured and otherwise caused permanent damages and injuries to [J.L.D.]" The complaint continued:

"As a proximate consequence of the negligence of the Defendant[], . . . [J.L.D.] was injured and suffered other damages, including pain and suffering, mental anguish and emotional distress, physical injuries, and was caused to incur medical bills, legal expenses, payment of various expenses . . ., and suffered other injuries, some of which are permanent."

In addition to the claims asserted on behalf of J.L.D., L.K.D.H. also alleged that as a result of Planned Parenthood's wrongful conduct she had personally suffered various injuries and damages, including "permanent" injury, "pain and suffering, loss of income, . . . mental anguish and emotional distress," medical expenses, and legal expenses. L.K.D.H., individually and on behalf of J.L.D., requested a judgment against Planned Parenthood for $1,000,000 in compensatory damages and for punitive damages.

After a failed mediation, the circuit court entered an order in July 2004 setting the case for a trial to be held in February 2005. The order also required L.K.D.H. to identify her expert witnesses, including a summary of each expert witness's opinion, on or before September 10, 2004, and it required each party to provide, 14 days before trial, a list of witnesses that that party intended to call at trial.

Also in July 2004, Planned Parenthood filed a motion for a summary judgment as to the claims asserted on behalf of J.L.D. In its motion, Planned Parenthood challenged only whether L.K.D.H., on behalf of J.L.D., had stated a cognizable claim for relief against Planned Parenthood. Relying solely on Elliott v. Brown, 361 So.2d 546 (Ala.1978), a case involving a failed vasectomy, Planned Parenthood argued that the claims asserted on behalf of J.L.D. were simply claims alleging "wrongful life" (i.e., claims alleging that but for Planned Parenthood's wrongful conduct J.L.D. would not have been born) and that "under Alabama law, a child can[not] pursue a malpractice claim against a medical provider arising out of a failed abortion procedure." Planned Parenthood specifically did "not contest the [factual] allegations asserted [on behalf of J.L.D.]," but it stated that it reserved the right to contest such matters should its motion for a summary judgment be denied. It also noted that "there are clear issues pertaining to duty, standard of care, causation and damages that substantially undermine [the] claims [asserted on behalf of J.L.D.] which are reserved for a later time, if necessary." Thus, the only issue before the circuit court on the motion for a summary judgment as to the claims asserted on behalf of J.L.D. was whether Alabama law allows for a cause of action on behalf of a child against an abortion provider based on negligent acts that cause the child to be born in an injured or deformed condition. L.K.D.H. did not file a response to Planned Parenthood's summary-judgment motion as to the claims asserted on behalf of J.L.D.

In August 2004, the circuit court entered an order granting Planned Parenthood's motion for a summary judgment as to the claims asserted on behalf of J.L.D. Specifically, the circuit court concluded that the facts as alleged by L.K.D.H., on behalf of J.L.D., were undisputed for purposes of Planned Parenthood's motion and that, "in view of Elliott," Planned Parenthood was entitled to a judgment as a matter of law.

In December 2004, Planned Parenthood filed a motion for a summary judgment as to L.K.D.H.'s individual claims. In support of its motion, Planned Parenthood filed an affidavit from Dr. Richard O. Davis, a practicing physician who is licensed in the State of Alabama and who is "experienced in obstetrics and gynecology, maternal and fetal medicine and is the Medical Director of Planned Parenthood of Alabama, Inc." Dr. Davis's affidavit states, in pertinent part:

"5. In particular, the medical records reflect that an abortion procedure was performed on [L.K.D.H.] at Planned Parenthood of Alabama, Inc. on June 5, 1999 to terminate a pregnancy of approximately 7.4 gestation weeks, which was confirmed by ultrasound. Dr. Elizabeth Kemp performed the evacuation procedure on June 5, 1999 using a suction curettage which is an appropriate procedure based upon [L.K.D.H.'s] history and condition. Dr. Kemp properly confirmed the evacuation and identified the products of conception. Furthermore, the products of conception were submitted for a pathology examination which confirmed the removal of products of conception. . . . Accordingly, the medical records and pathology report confirm the procedure was properly performed.

"6. Nonetheless, particularly during an early gestation period, such as in the case here, it is not uncommon for there to be a continuing pregnancy notwithstanding the exercise of reasonable care, skill and diligence as other similarly situated health care providers in the same general line of practice. In my opinion, the care and treatment rendered to [L.K.D.H.] met or exceeded the required standard of care.

"7. Likewise, I am familiar with the follow-up care and treatment provided to patients undergoing pregnancy termination procedures by medical providers, such as [Planned Parenthood] and, in my opinion, the care and treatment provided [L.K.D.H.] by [Planned Parenthood], at all times, met or exceeded the required level of such reasonable care, skill and diligence as other similarly situated health care providers in the same general line of practice, ordinarily have and exercise in like cases."

Planned Parenthood noted that L.K.D.H. had not designated any expert witnesses to testify at trial in support of her claims, as she was required to do by the July 2004 order. Planned Parenthood asserted that because it had presented substantial evidence as to the applicable standard of care through Dr. Davis's affidavit, L.K.D.H. had the burden of presenting substantial evidence, through expert testimony, that Planned Parenthood had breached the applicable standard of care. Planned Parenthood further argued that because "[L.K.D.H.] has not procured any expert testimony to establish her case and cannot refute the expert testimony of Dr. Davis," she could not "prove a breach of the standard of care as required by Alabama Code [1975], § 6-5-548." See § 6-5-548(a) ("[T]he plaintiff shall have the burden of proving by substantial evidence that the health care provider failed to exercise such reasonable care, skill, and diligence as other similarly situated health care providers in the same general line of practice ordinarily have and exercise in a like case."). Therefore, Planned Parenthood requested that the circuit court enter a summary judgment in favor of Planned Parenthood as to L.K.D.H.'s individual claims.

Upon motion by L.K.D.H., the circuit court entered an order giving her until January 3, 2005, to respond to Planned Parenthood's motion. On December 28, 2004, L.K.D.H. filed a response to Planned Parenthood's motion for a summary judgment as to her individual claims, along with a supporting affidavit signed by her and a supporting affidavit from Dr. James A. Mankin, Jr., a physician licensed to practice medicine in the State of Alabama.

On January 4, 2005, Planned Parenthood filed a motion to strike Dr. Mankin's affidavit on the ground that L.K.D.H. had failed to comply with the circuit court's July 2004 scheduling order. L.K.D.H. filed a response to Planned Parenthood's motion to strike, asserting that the "affidavits submitted in opposition to the pending motion for summary judgment are required by law, impose no hardship on [Planned Parenthood], and simply confirm the pending claims of [L.K.D.H.]."

After L.K.D.H. filed her response, the circuit court entered an order stating that L.K.D.H. did not "refute" Planned Parenthood's argument that L.K.D.H. had failed to disclose Dr. Mankin as an expert witness as required by the July 2004 scheduling order. The circuit court concluded, "[t]rial is now less than a month away, and to permit a surprise expert witness to testify at this late date would unduly prejudice [Planned Parenthood]." The circuit court granted Planned Parenthood's motion to strike Dr. Mankin's affidavit, citing Coca-Cola Bottling Co. United, Inc. v. Stripling, 622 So.2d 882, 889 (Ala.1993) (holding that a trial court did not err when it refused to allow an expert to testify because the expert "had not been revealed before trial, as required...