Moon v. Nolen

• Decision Date: 31 July 1975
• Citation: 318 So.2d 690,294 Ala. 454
• Parties: Eddie L. MOON v. Dr. Jack R. NOLEN and Baptist Memorial Hospital. SC 916.
• Court: Alabama Supreme Court

Page 690

318 So.2d 690

294 Ala. 454

Eddie L. MOON v. Dr. Jack R. NOLEN and Baptist Memorial Hospital.

SC 916.

Supreme Court of Alabama.

July 31, 1975.

Ralph E. Coleman, Birmingham, for appellant.

Dortch, Wright & Ford, Gadsden, for appellees.

BLOODWORTH, Justice.

Appellant, Eddie L. Moon, brought this medical malpractice action against defendants, Dr. Jack Nolen and Baptist Memorial Hospital, seeking to recover for the death of appellant's premature infant. The Circuit Court of Etowah County entered judgment on a jury verdict for defendants and plaintiff has appealed to this Court. We affirm.

About twenty-four weeks into her pregnancy, appellant's wife was admitted to Baptist Memorial Hospital where, under the care of Dr. Nolen, she gave premature birth to an infant male who weighed only two pounds, three ounces (996 grams), and who suffered from severe respiratory distress. Dr. Nolen attempted to aid the infant's respiration by means of skin stimulation and artificial respiration, but no oxygen was administered in the delivery room. Dr. Nolen pronounced the infant dead and the infant was covered with a blanket and taken to the 'suspect nursery,' a room used to isolate deceased infants and infants with contagious diseases. Dr. Nolen then informed the family that the infant had died. When the grandparents were taken to the 'suspect nursery,' at their insistence, to see the infant, they discovered he was still alive. The infant was later removed to the regular nursery where oxygen was administered.

Hospital personnel testified that the child was taken to the regular nursery at 4:35 p.m., as recorded in the hospital record. However, the infant's grandparents testified that he was not removed from the 'suspect nursery' until approximately 5:35 p.m. An examination of the hospital record shows that the original entry was '5:35' and that a '4' had been written over the '5.' A nurse testified she made an error in the original entry and corrected it.

At 6:00 p.m., hospital personnel summoned a pediatrician, Dr. Griffith. The infant was not attended by a physician from the time it left the delivery room until Dr. Griffith's arrival at 6:15 p.m. Dr. Griffith found the child suffering from a severe acid imbalance in the blood caused by lack of oxygen resulting from the infant's respiratory distress. Dr. Griffith testified that he prescribed and administered the drug sodium bicarbonate in an attempt to remedy the child's acid imbalance. The hospital record, however, indicates that the infant was administered magnesium sulfate. (Magnesium sulfate is commonly prescribed to achieve results the opposite of those for which sodium bicarbonate is commonly prescribed.) A nurse testified that magnesium sulfate was not actually given the child but that its entry in the hospital record was merely an error. (Testimony at trial indicated that in premature deliveries the obstetrician sometimes advises the parents to obtain a pediatrician to be present at the delivery. In this case, however, that advice was not given.)

After initial improvement in response to Dr. Griffith's treatment, the infant's acid imbalance reached a level inconsistent with life and the infant died the next day, within 24 hours of its birth.

After a jury verdict for defendants, appellant filed a motion for new trial which the trial court denied. On this appeal, appellant asserts the grounds set out in his motion for new trial as the basis for a reversal of the judgment of the trial court.

1. Appellant contends that the trial court committed reversible error in excluding plaintiff's exhibit number 3, a photograph depicting the deceased infant in its casket. Appellant offered the photograph as bearing on a material fact in issue, the infant's physical condition. It is beyond dispute that the infant's physical condition was a central issue in the trial court. Dr. Nolen's defense was based on the contention that his treatment was the proper care and treatment to be accorded the infant and was justified in view of the child's weight and gestational age; that infants of that weight and age were not usually expected to survive; and that no support is normally given to premature infants with such a poor chance for survival. Dr. Griffith testified, however, that the determination to place a premature baby aside without support varies with the general physical condition of the child, as well as its age and weight. Appellant contends that the photograph was relevant to the jury's determination respecting Dr. Nolen's care and treatment of the infant, that it would have impressed upon the jury the fact that the child was normal--that he bore the physical appearance of humanness and was not merely 'a blob of protoplasm.'

A photograph is 'generally relevant and admissible for the purpose of explaining and applying the evidence' when it enables the jury 'to have a better understanding of a person, place, object or conditions.' Thompson v. Magic City Trucking Service, 275 Ala. 291, 296, 154 So.2d 306, 311 (1963).

Nevertheless, the application of the rule to a particular photograph offered for admission remains a matter within the sound discretion of the trial court. The trial judge is vested with discretion not only in his determination as to the preliminary proofs offered to identify the photograph or to prove that the photograph is an accurate representation of the objects it purports to portray (International Union, etc. v. Russell, 264 Ala. 456, 88 So.2d 175 (1956), Aff'd 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030 (1958)), but also in his determination of whether the picture will aid the jury or tend to confuse or prejudice it. (International Union, etc. v. Russel, supra). The discretion of the trial court in such matters is not reviewable in the absence of a gross abuse of that discretion. Godwin v. Jerkins, 282 Ala. 11, 208 So.2d 210 (1968).

We have examined the photograph in question and find that it justifies its exclusion by the trial court. The photograph is a small one, taken some distance from the casket, showing only the infant's head, the body being completely covered. The photograph does not illustrate the normalcy of the child's physical development nor does it provide any reference point from which his size may be judged. Although the photograph was offered to support appellant's contention that Dr. Nolen was negligent in his judgment as to the infant's chance for survival, judged as of his condition at birth, the photograph was taken at a time when the child's appearance was quite different from that as of the time of his birth. Testimony at trial indicated that at birth the child's head was discolored due to its respiratory problems, this being one of the factors upon which Dr. Nolen made his determination as to the condition of the child. There is some evidence which indicates that at the time this photograph was taken, the infant's discoloration had disappeared since the body had already been put through the embalming process. In short, the evidence supports the trial judge's decision to exclude the photograph for the purpose for which it was offered. We find no abuse of discretion in the exclusion of this exhibit.

2. In the course of appellant's cross-examination of co-defendant Nolen on the occasion of the taking of his deposition, the following question was posed:

'And whatever changes have been made on the hospital record were made when you first came back to review?'

The trial court sustained an objection to the question and appellant contends this ruling denied appellant's right to the 'thorough and sifting' cross-examination guaranteed under Title 7, section 443 of our Code.

The scope and extent of cross-examination is a matter reserved for the sound discretion of the trial court. The exercise of discretion in the limitation of cross-examination is not reviewable in the absence of gross abuse. Moody v. Stanfield, 292 Ala. 185, 291 So.2d 301 (1974). Moreover, prejudicial error must be shown. Carlisle v. Miller, 275 Ala. 440, 155 So.2d 689 (1963).

We find no abuse of discretion by the trial court in this instance for at least two reasons. First, the sustained objection was that 'He is asking for a conclusion of the witness.' Opposing counsel specified that their objection was to 'the form of the question' and the judge was equally specific, as is evidenced by his explanation, 'I am going to sustain the objection; I think it calls for a conclusion.' This ruling left counsel for appellant free to rephrase his question and to pursue the same information. Second, the record does not support the charge that appellant was deprived of a 'thorough and sifting' cross-examination. In fact, the record refutes this contention. Appellant read into evidence parts of the witness' deposition, comprising 38 pages of the record, his cross-examination of the witness comprising 36 pages of the record, and his re-cross-examination comprising 7 pages of the record. The objection in question was the Only objection made during the entire course of appellant's examination of this witness. Thus, it is clear that appellant was not denied an opportunity for a 'thorough and sifting' cross-examination of the co-defendant.

Moreover, appellant could have sought the same information from Dr. Nolen himself when the latter took the stand and testified. As this Court wrote in Jordan v. State, 267 Ala. 361, 102 So.2d 4 (1958): 'Considering the record as a whole, we do not think there was any abuse of sound discretion in the rulings upon...