Nolen v. Peterson
| Decision Date | 13 January 1989 |
| Citation | 544 So.2d 863 |
| Parties | Wilbur B. NOLEN II v. Mark B. PETERSON and John C. Wicks. 87-446. |
| Court | Alabama Supreme Court |
Jerry Knight of Hardwick, Knight & Haddock, Decatur, for appellant.
W.J. McDaniel and Robert S.W. Given of McDaniel, Hall, Conerly & Lusk, Birmingham, and J. Michael Broom of Bell, Richardson, Herrington, Wilmer, Sparkman & Shepard, Huntsville, for appellee Mark B. Peterson.
G.R. Trawick and Thomas B. Klinner, Montgomery, for appellee John C. Wicks, M.D.
This appeal presents two issues: 1) Whether the trial court abused its discretion by refusing to consider expert testimony filed on the date of a summary judgment hearing as opposed to being filed prior to the day of hearing, pursuant to Rule 56(c), A.R.Civ.P., where the trial court granted the plaintiff's earlier request for a continuance because his original counsel had withdrawn from the case, and where the plaintiff had employed new counsel two days before the hearing; and 2) whether the lack of "informed consent" is excused, as a matter of law, in the context of a medical malpractice claim by a plaintiff who has been involuntarily civilly committed to a mental health facility and whose condition has been diagnosed as manic depressive. We reverse and remand.
The complaint alleges that the plaintiff suffered permanent physical injury (a pseudo-Parkinsonian disease known as "tardive lingual and oralfacial dyskinesias"), resulting from the prescription for and administration to him of two drugs. The plaintiff was confined in the North Alabama Regional Hospital on two separate occasions. On the first occasion he was attended by defendant Dr. Mark Peterson, who prescribed the drug Prolixin Decanoate, and on the second occasion by defendant Dr. John Wicks, who prescribed Mellaril. In the summary judgment posture of the case, it is conceded that the plaintiff's physical condition is consistent with a known potential side effect of these two drugs. Further, the defendants do not contend, in their affidavits supporting the motion for summary judgment, that the applicable standard of care relieved them from obtaining the patient's "informed consent," but that they did in fact inform Nolen of the potential risks.
The defendants' motions for summary judgment were granted on two separate grounds: 1) That the plaintiff's counter-affidavits were untimely filed (being filed on the day of the hearing and not at least one day before the hearing); and, 2) that, as a matter of law, the plaintiff is not entitled to maintain a medical malpractice claim based on the "informed consent" doctrine in the context of his involuntary commitment to a mental health facility pursuant to a civil proceeding.
Because Nolen must prevail on the procedural issue (whether his affidavits in opposition June 17, 1985--Nolen's complaint filed by his first lawyer in Jefferson County.
to the motions for summary judgment were timely filed), or else the substantive "informed consent" issue will be declared moot, we first address the "timely filing" issue. A detailed sequence of events will be helpful:
October 10, 1985--Defendant drug company's motion to dismiss granted
May 1986--Nolen's first lawyer withdraws
June 12, 1986--Remaining defendants' motions to transfer to Morgan County granted
May 1986 to November 1986--Nolen fails to obtain new lawyer
November 1986--Nolen hires new lawyer
April 1987--Second lawyer withdraws
April 1987 to December 8, 1987--Nolen fails to obtain new lawyer
August 18, 1987--case set for trial, but continued on Nolen's request for time to retain lawyer
November 18, 1987--defendants file motions for summary judgment
November 20, 1987--defendant Peterson supplements motion for summary judgment
November 24, 1987--defendant Wicks supplements motion for summary judgment
November 30, 1987--case set for trial, but continued at Nolen's request
December 1, 1987--all parties given notice of hearing on summary judgment motions set for December 10
December 8, 1987--Nolen retains present lawyer
December 10, 1987--Immediately before hearing, Nolen serves motion for continuance and affidavits in response to motions for summary judgment. Following hearing, motions for summary judgment granted.
The pertinent portions of the December 10 hearing transcript read as follows:
[At this point, arguments were made by all parties regarding the issues of 1) informed consent; and, 2) immunity of the defendant doctors as state employees.]
The defendants rely heavily upon our case of Johnson v. Allstate Ins. Co., 505 So.2d 362 (Ala.1987), and the Fifth Circuit Court of Appeals case of Farina v. Mission Inv. Trust, 615 F.2d 1068 (5th Cir.1980), for the proposition that the trial court's exercise of discretion in disallowing untimely filed Rule 56(c) affidavits will be reversed only for abuse of discretion. We agree that this is the appropriate standard When so reviewed, we find here a set of circumstances materially different from those in Johnson and Farina. The reports of those earlier cases (including the case of State v. Norman Tie & Lumber Co., 393 So.2d 1022 (Ala.Civ.App.1981), fail to disclose any factual basis for a Rule 6(b) "excusable neglect" finding. Here, Nolen's "retention of a lawyer" problem began when his Birmingham lawyer apparently lost interest in pursuing the litigation upon the transfer of the case from Jefferson to Morgan County. His second Birmingham lawyer withdrew after about five months, all of which happened more than seven months before the defendants filed their motions for summary judgment.
of review. Our review, pursuant to that standard, however, is influenced by the spirit of Rule 1's admonition in favor of an adjudication on the merits of every case. Just as in the case of a default judgment pursuant to Rule 55, a discretionary summary judgment that ends the litigation in favor of the defendant, because of the plaintiff's failure of strict compliance with Rule 56(c), must be reviewed in light of the totality of the circumstances of each case.
Although the case was set for trial on November 30, 1987, and the record reflects that it was continued at Nolen's request, the record also reflects that the defendants' motions for summary judgment (last supplemented on November 24) were pending and awaiting disposition. Indeed, the following day (December 1), the trial court, obviously recognizing that the November 30 trial date was premature, scheduled a hearing on the summary judgment motions for December 10.
From this point forward, any lack of diligence with respect to the filing of appropriate responses to the pending summary judgment motions must fall upon Nolen personally for his failure to retain counsel earlier than December 8, and not upon Nolen's newly employed counsel. With only one full day between his employment date and the date of the hearing, Nolen's lawyer prepared a motion for a continuance, an affidavit by Nolen, and an affidavit by Nolen's personal physician for filing and serving before 9:00 a.m. on the date of the summary judgment hearing. Under the totality of these circumstances, we are not prepared to conclude, as a matter of law, that Nolen's delay in retaining counsel is so inexcusable as to justify the action of the trial court in refusing to accept and consider the affidavits offered by Nolen in opposition to the motions for summary judgment.
Moreover, the motion for a one-day continuance (so as to comply with the "prior to the hearing" language of Rule 56(c)), absent the trial court's willingness to accept the plaintiff's affidavits on December 10, should have been granted, as a matter of law. When the trial court, acting on December 1, scheduled a summary judgment hearing for December 10, this notice period fell one day short of the ten-day requirement of Rule 56(c). Hightower & Co. v. United States Fidelity & Guaranty Co., 527 So.2d 698 (Ala.1988). Thus, the trial court could have cured this defect either by accepting and considering the affidavits as filed on December 10, or by granting the requested one-day continuance. Failing to accept either option, the trial judge abused his discretion. Furthermore, considering the nature of the evidence contained in the proffered affidavits, we find that no undue prejudice would result to the defendants.
Whether that error requires reversal depends upon our answer to the substantive "informed consent" issue: Whether the trial court...
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