Mixon v. Cason
| Decision Date | 18 June 1993 |
| Citation | 622 So.2d 918 |
| Court | Alabama Supreme Court |
| Parties | Yolanda D. MIXON v. Drs. CASON, et al. 1920335. |
Joan B. Singleton, Bessemer, for appellant.
Robert D. Norman, Jr. of Norman, Fitzpatrick, Wood, Parker & Kendrick, Birmingham, for appellees.
In this medical malpractice action, the trial court either dismissed or entered summary judgments for all 10 defendants. These dismissals and summary judgments were made final pursuant to Rule 54(b), Ala.R.Civ.P. The plaintiff, Yolanda D. Mixon, appeals. We dismiss the appeal in part; affirm in part; reverse in part; and remand.
The complaint originally charged some of the defendants with gross negligence and breach of contract for administering contaminated blood to the plaintiff in August 1989, when she underwent gall bladder surgery; she alleged that the blood caused her to become HIV positive. Later, the gravamen of the complaint was enlarged, to allege, in the alternative, that the plaintiff was HIV positive in May 1989, and that at that time the defendants knew, or should have known that fact, and that the defendants did not inform the plaintiff of her condition until November 1989.
The defendant Genevieve Schechter, M.D., moved to dismiss this appeal as to her. On October 8, 1992, a summary judgment was entered and made final as to Dr. Schechter. No appeal was taken from that judgment. Because no appeal was taken, we have nothing to dismiss as to Dr. Schechter, but we note that in fact the appeal now before us does not involve her. Then there were nine.
On July 21, 1992, two of the defendants, Mark C. Phillips, M.D., and Gary Russell, M.D., were given summary judgments; those summary judgments were made final pursuant to Rule 54(b), Ala.R.Civ.P. No appeal was taken from those judgments within the 42 days allowed for appeal by Rule 4, Ala.R.App.P. The appeal now before us was taken on November 17, 1992, beyond the time allowed for an appeal as to Dr. Phillips and Dr. Russell. Drs. Phillips and Russell were named as parties to this appeal, but they are not properly before this Court. Insofar as the appeal before us relates to these two defendants, it is dismissed. Then there were seven.
The defendant, Michael Salvia, M.D., 1 was added as a defendant on February 19, 1992. He was not substituted for a fictitiously named defendant pursuant to Rule 9(h), Ala.R.Civ.P.; Dr. Salvia was simply added as a defendant. The only evidence before the trial court when it entered a summary judgment for Dr. Salvia was that Dr. Salvia had treated the plaintiff from May 18, 1989, to May 23, 1989, while the plaintiff was a patient at Cooper Green Hospital. Dr. Salvia's name appears on the plaintiff's chart and the plaintiff easily could have ascertained his name before filing this action on August 9, 1990. The plaintiff's claim against Dr. Salvia was time-barred; and the trial court properly entered a summary judgment for Dr. Salvia. Then there were six.
The plaintiff did not name Neal Miller, M.D., as a defendant until June 8, 1992. Dr. Miller was not substituted for a fictitiously named defendant pursuant to Rule 9(h), Ala.R.Civ.P., but was merely added as a defendant. Dr. Miller was the director of the laboratory at Cooper Green Hospital, and he was sued in regard to events that occurred from May 1989 to August 1989. By due diligence, the plaintiff could have ascertained at any time the name of the director of the laboratory. The plaintiff did not plead with the specificity required by Rule 9(b), Ala.R.Civ.P., to allege a cause of action for fraudulent concealment under Ala.Code 1975, § 6-2-3, against Dr. Miller so as to extend the statute of limitations. Therefore, the claim against Dr. Miller was time-barred, and the trial court properly dismissed him. Then there were five.
The uncontradicted evidence is that the defendant Adam Robertson, M.D., never rendered any care or treatment to the plaintiff, was never in a physician-patient relationship with the plaintiff, and never prescribed or undertook any course of treatment for the plaintiff. Dr. Robertson's name was placed on emergency room charts for all patients who were presented to Cooper Green Hospital's emergency room, who did not have a personal physician. The trial court properly entered a summary judgment for Dr. Robertson. Then there were four.
The uncontradicted evidence is that William P. Cason, M.D., has a specialty in radiology, that his only involvement with the plaintiff as a physician was through the interpretation of X-ray films, which were taken at Cooper Green Hospital. The "Clinical Diagnosis, Indication for Examination" was "sickle cell crisis." The interpretation was as follows: " The plaintiff had been treated for sickle cell anemia for years preceding her presentment to Cooper Green Hospital in May 1989. There is uncontradicted evidence that Dr. Cason knew the standard of care, skill, and diligence to be exercised by radiologists in interpreting X-ray films and that in interpreting the films of the plaintiff, Dr. Cason exercised that standard of care. The court properly entered a summary judgment for Dr. Cason. Then there were three--Jefferson Clinic, P.C.; Carol Leitner, M.D.; and Philip Johnson, M.D.
Dr. Leitner's motion for summary judgment is supported by her affidavit; Dr. Johnson's motion for summary judgment is supported by his affidavit; and Jefferson Clinic's motion for summary judgment is supported by the affidavits of...
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...to come forward with evidence in response to the motion. In such cases, a summary judgment would be inappropriate. See Mixon v. Cason, 622 So.2d 918, 921 (Ala.1993). However, even assuming the truth of Steve Travis's claim that he suffered from post-traumatic stress disorder and as a result......
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Henderson v. Washington Nat. Ins. Co.
...6-2-3, Rule 9(b) requires that a plaintiff aver the circumstances and events constituting the fraudulent concealment. See Mixon v. Cason, 622 So.2d 918, 920 (Ala.1993). A plaintiff must "use more than generalized or conclusionary statements when setting out the allegations of fraud." Lyde v......
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...care provider's conduct breached the standard of care and was the proximate cause of the patient's injury or death." Mixon v. Cason, 622 So.2d 918, 921 (Ala.1993). Substantial evidence is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can......
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Carraway v. Kurtts, 1060589.
...standard of care of board-certified family practitioners at all times material to the plaintiff's complaint." Richard cites Mixon v. Cason, 622 So.2d 918 (Ala.1993), for the proposition that on a motion for a summary judgment by a health-care provider in a medical-malpractice action, the he......