Lloyd Noland Hosp. v. Durham

• Citation: 906 So.2d 157
• Parties: LLOYD NOLAND HOSPITAL v. Janann DURHAM.
• Decision Date: 07 January 2005
• Court: Supreme Court of Alabama

906 So.2d 157

LLOYD NOLAND HOSPITAL v. Janann DURHAM.

1030422.

Supreme Court of Alabama.

January 7, 2005.

Robert E. Cooper, Deborah Alley Smith, and Jennifer W. Thompson of Christian & Small, LLP, Birmingham, for appellant.

Shay Samples, Ralph D. Cook, and Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham, for appellee.

W. Stancil Starnes, Sybil Vogtle Abbot, and Ashley E. Watkins of Starnes & Atchison, LLP, Birmingham, for amicus curiae Medical Association of the State of Alabama.

PER CURIAM.

Lloyd Noland Hospital ("the Hospital") appeals from the denial of its motion for a new trial, following a judgment entered on a jury verdict in favor of Janann Durham, in Durham's medical-malpractice action against the Hospital and the denial of its motion to alter or amend the judgment as to the payment of future damages. We affirm.

On May 29, 1996, Durham was admitted to the Hospital on the orders of Dr. John Edwards, her gynecologist and primary surgeon, to undergo two surgical procedures during one operation: (1) a "total vaginal hysterectomy and anterior colporrhaphy" ("the first procedure"), and (2) a "RAZ retropubic suspension" ("the second procedure"). Her specific admission orders were handwritten by Dr. George McGrady, Dr. Edwards's partner. Dr. McGrady and Dr. Edwards were partners in the "Henderson & Walton Obstetrical Gynecological Group" ("the Group"), which, pursuant to a contract with the Hospital, provided gynecological care and treatment for patients at the Hospital as "consultants."

The admission orders did not prescribe a preoperative antibiotic. The nursing staff of the Hospital included the admission orders with Durham's chart but did not place with her chart any supplementary, or "standing," orders. Consequently, Durham received no preoperative antibiotic.

Dr. Edwards and Dr. McGrady performed the first procedure; the second procedure was performed by Dr. Leon Hamrick, Jr., a urologist. After the surgery, Durham was dismissed from the Hospital. Subsequently, she developed a postoperative infection that required her to be rehospitalized and to undergo extensive treatment.

On May 27, 1998, Durham sued Dr. Edwards, Dr. Hamrick, and the Hospital. The complaint, as finally amended, alleged, in pertinent part:

"2. [Durham] ... avers that [the Hospital] breached the minimum standard of care required of it, and, hence, was negligent in one or more of the following respects, to-wit, its [nursing staff]:

"a. Negligently failed to insert the preoperative standing orders of Dr. John Edwards in [Durham's] chart;

"b. Negligently failed to follow the preoperative standing orders of Dr. John Edwards;

"c. Negligently failed to administer preoperative, prophylactic or perioperative antibiotics ordered by Dr. John Edwards;

"d. Negligently failed to properly and adequately assess and prepare [Durham] preoperatively;

"e. Negligently failed to follow a standing order concerning the plaintiff's care; [and]

"f. Negligently cleared and allowed the plaintiff to proceed to surgery without the proper execution and documentation of Dr. John Edwards' preoperative standing orders...."

(Emphasis added.) By a joint stipulation, Dr. Edwards and Dr. Hamrick were dismissed from the action, and the case proceeded to trial solely against the Hospital.

A jury trial began on July 7, 2003. On July 15, 2003, after the jury was charged, but before it retired to deliberate, the trial judge designated C.W. as the alternate juror, stating: "She will have to go in my office [while the jury deliberates] or somewhere or one of the conference rooms or something." The jury then deliberated for approximately an hour on July 15 and throughout the following day. On July 17, one of the jurors failed to appear for jury duty. The court was informed by the remaining jurors that the absent juror had left the state to attend a family reunion. The following discussions then transpired among the court and counsel:

"THE COURT: Well, this is something we certainly would not anticipate that somebody would take it upon themselves just to leave. Now, you have got two choices. Now — and this is something that would definitely not be, you know — if I would have known, I could guarantee you, we would not have let her leave. Because she never told me that she would even think about — I never knew anything about going to New York or even — when something was said about going to a family reunion, she said that I have got a family reunion on Wednesday.

". . . .

"THE COURT: Now, we can either go with 11, . . . which you said you don't want to go with 11, or we can put the alternate in there. Now, the alternate has not talked to anybody. She has been in that room in there. Now, I guess first of all I've got to find out what was y'all's position that you didn't want to go with less than 12 and find out whether or not you want to go with less than 12 now because you basically are having to put somebody else in there who has not deliberated.

"MR. COOPER [counsel for the Hospital]: I think in discharging my duty to my client, assuming that what appears to be the case ultimately is confirmed; that is, that Ms. [S.] has left and is either in New York or on her way to New York. Then, I would have to ask for a mistrial, based on her unavailability to complete the deliberations. I am trying to make Your Honor aware of the position. I am not saying —

"THE COURT: Yes, sir.

"MR. COOPER: I can't agree to go with 11. If the Court's decision, assuming that that is what we suspect is confirmed, that is, that Ms. [S.] has, I guess, abandoned the jury or left without leave of the Court. And if assuming that I made the motion that I feel compelled to make and if the Court were to overrule such a motion, then I think that the Court would need to inquire of [C.W.] certain things before she was put on the jury.

"THE COURT: Yes, sir.

"MR. COOPER: And these are some questions that before the Court made that decision, that I would like put to [C.W.] by the Court. And the reason that I ask that is, someone was in there with her alone with the door closed on the first day of deliberations. Frankly that disturbs me. I don't know what was said and I suppose each side could ask her. I would feel better if the Court put those questions to her before the Court made a determination whether to permit — I am sorry. I should have made a copy [of questions to be posed to C.W.] to give to [counsel] before the Court made an ultimate decision as to whether you will allow her to continue the deliberations.

"Even if the Court reached that determination, I feel that — to put an alternate in after a day and a couple of hours of deliberations puts the defendant at an extreme disadvantage and I would have to renew my motion for a mistrial. I am just trying to make you aware, Judge of what and why.

"THE COURT: I understand. One thing, Bob [Mr. Cooper], I want you to know, I know you are doing exactly what you are supposed to do. Don't worry about that. You are doing your job to take care of your client. If you didn't do that, then I would say, Bob, you had better — you should make a motion.

"MR. COOPER: Yes, sir.

"THE COURT: That is what you ought to do. These are things that I need to ask because these same questions are going to apply also to [Durham's] side. She — you know, she may — we don't know what she may have been doing for sure. We may need to find out.

". . . .

"THE COURT: All right. First of all, let me ask [Durham], what is y'all's position as far as proceeding.

"MR. COOK [cocounsel for Durham]: Judge, we oppose the mistrial. We think that the procedure that you set out for the trial of this case was the appropriate one and one that could now be used now that we have a juror that apparently has dropped off this panel. We have an alternate. I think that, to be on the cautious side, that you might want to say to them that since this alternate has not been involved in deliberations thus far, they have to start afresh and they can bring her up to speed as to what they have discussed and that this juror who was previously qualified and sworn is qualified to join this panel at this point and to complete the deliberations in this case.

"THE COURT: I think it would be important that if we — first of all to go over these questions and find out these things. And then like you say, if there has been no tainting one way or the other of the alternate, then to make sure that they go through and tell them to go through the evidence and have a complete discussion of the evidence again. Sort of like take the chalkboard and wipe it off and have a clean slate and start over as if they are beginning now, you know, if she is so-to-speak a clean juror.

"I guess what I am saying is I deny your motion for a mistrial. . . .

"MR. COOPER: There is another alternative that the Court could consider. I don't offer it up as a desirable alternative. The jury could recess [its] deliberations until Ms. [S.] returns from New York.

"MR. COOK: Judge, we would be opposed to that. I think that these jurors have been in attendance for this is the ninth day since this case started. If Ms. [S.] in fact is not available, we have an alternate that is qualified and this jury could continue with [its] deliberations this morning.

"MR. COOPER: It's the dynamic of the deliberation process that makes me object to substituting the alternate at this late point in the deliberations."

(Emphasis added.) Alternate juror C.W. was then brought before the court and counsel, was sworn in, and was questioned, first by the court, apparently using some of the written questions the Hospital's counsel had previously proposed to be put to her, and then by the Hospital's counsel. C.W. denied that anyone had talked with her while she was in a conference room awaiting being recalled to the jury, other than another circuit judge who had entered the conference room to inquire if she needed any reading material. According to C.W., she and the...