Otwell v. Bryant

• Decision Date: 03 October 1986
• Citation: 497 So.2d 111
• Parties: Arlen OTWELL and Franklin Otwell v. Dr. Kirby F. BRYANT, Jr., and Anniston Urologic Associates, P.A. 84-898.
• Court: Alabama Supreme Court

Page 111

497 So.2d 111

Arlen OTWELL and Franklin Otwell v. Dr. Kirby F. BRYANT, Jr., and Anniston Urologic Associates, P.A.

84-898.

Supreme Court of Alabama.

Oct. 3, 1986.

Ralph E. Coleman and Peggy Hale Cook, Birmingham, for plaintiff/appellant.

W. Stancil Starnes and Randal H. Sellers of Starnes & Atchison, Birmingham, for defendants/appellees.

Champ Lyons, Jr. of Coale, Helmsing, Lyons & Sims, Mobile, for amicus curiae The Medical Ass'n of the State of Ala.

Timothy C. Davis and Lloyd W. Gathings, II of Edmond & Vines, Birmingham, for amicus curiae Ala. Trial Lawyers Ass'n.

Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, Montgomery, for amicus curiae Mut. Assur. Soc. of Ala.

MADDOX, Justice.

This is a medical malpractice case.

The plaintiff/appellant Arlen Otwell went to see Dr. Kirby F. Bryant of Anniston Urologic Associates, P.A. (the defendants/appellees) after he passed blood in his urine. After a series of tests, Dr. Bryant was unable to tell for sure, but, from the results of a cystoscope, suspected Otwell had bladder cancer. The pathologist had reported this appeared to be an aggressive malignant neoplasm, but the sample was too small to make a definitive diagnosis. Dr. Bryant scheduled Arlen for surgery. Dr. Bryant told the family before surgery that he suspected Otwell's bladder, prostate, and seminal vesicles would have to be removed. In addition, Arlen would have to have an ileal conduit. Arlen and his family agreed to the surgery.

During the operation, Dr. Bryant found the tumor that his tests had indicated in Arlen's bladder area. It was about the size of a football. Three samples sent to the laboratory were indefinite. While Dr. Bryant knew that it was impossible to make a definitive diagnosis at that time, he was able to see the tumor and could appreciate beyond any doubt that the tumor was destroying the bladder and the prostate and had destroyed the seminal vesicles and had to be removed whether it was a malignant sarcoma or some type of non-malignant tumor. Dr. Bryant removed the tumor and the other organs he had expected he would need to remove. As a result, Arlen cannot have an erection, or ejaculation, and must wear the ileal conduit permanently.

Dr. Bryant was later informed, as a result of tests on the tumor, that Arlen did not have cancer, but had neurofibromatosis. Experts testified that the only difference in this disease and cancer is that neurofibromatosis is not carried by the blood stream or the lymph system. The experts also testified to the effect that Arlen was already sterile at the time of the surgery, and that if the tumor was not removed, it would have killed Arlen eventually.

Appellants commenced this suit by filing a complaint in the Circuit Court of Clay County (later transferred to Calhoun County Circuit Court). The complaint alleged medical negligence on the part of Dr. Bryant on the basis of his care and treatment of Arlen Otwell (removing the tumor without a definitive diagnosis). It also alleged negligence on behalf of Anniston Urologic Associates by and through the actions of its agent, Dr. Bryant. A jury trial was had on this matter. The jury returned a verdict in favor of the appellees. The appellants then filed a motion for a new trial, which was denied.

Five issues are presented for this Court to review. We will consider first the issue of whether testimony that the defense's experts belonged to the same mutual liability insurance carrier should have been allowed. The appellants argue that the trial court improperly refused to allow evidence that witnesses presented by both the appellants and appellees were covered under professional liability insurance.

The appellees in this case, Dr. Bryant and Anniston Urologic Associates, are insured by the Mutual Assurance Society of Alabama (MASA). Additionally, appellee's witnesses, Dr. Gibbs and Dr. Talbot, were insured by MASA and appellees' witness, Dr. Crowe, was president of MASA at the time of this litigation and was a member of the claims committee reviewing this case. MASA was formed to provide malpractice insurance for doctors after the major malpractice carriers stopped writing policies in Alabama. The doctors who are members of the society pay money each year to the fund. Malpractice awards are paid out of this fund and MASA has paid a dividend in the past, which is just a return of part of the premiums.

During the trial of this case, the trial judge granted the appellees' motion in limine concerning any reference to liability insurance with respect to any witness, and ordered removed from the video deposition of Dr. William A. Talbot, Jr., a witness on behalf of the appellees, those portions of appellants' attorney's cross-examination concerning Dr. Talbot's liability insurance carrier, MASA. The deleted testimony would have revealed that Dr. Talbot is insured by the same liability carrier which insures the appellees. Consequently, at trial appellants were not only precluded from questioning any witness on direct about MASA, but were also not allowed to cross-examine or impeach appellees or appellees' witnesses by a showing of their pecuniary interest, bias, or prejudice resulting from their relationship with MASA.

A plaintiff may not ordinarily introduce evidence showing that the defendant has liability insurance. Welborn v. Snider, 431 So.2d 1198 (Ala.1983); Thorne v. Parrish, 265 Ala. 193, 90 So.2d 781 (1956). The appellants contend that a showing of liability insurance coverage is permissible if offered for the purpose of demonstrating bias or prejudice of a witness in favor of a particular party to the case. We recognize that the trial court has discretion to admit evidence to show the bias, prejudice, or interest of a witness, Osborne v. Cobb, 410 So.2d 396 (Ala.1982); however, this rule applies only in certain limited situations. In Hinton & Sons v. Strahan, 266 Ala. 307, 96 So.2d 426 (1957), this Court sustained the trial court's ruling allowing the introduction of evidence that a witness who testified in behalf of the defendant had a connection with the liability insurer of the defendant. The connection between the witness and the insurer was not simply that of a policyholder, as in the present case. The witness testifying in Hinton was a member of the board of directors and was employed by the liability insurer. This Court made it clear in Hinton that the witness must be an "agent" of the insurer before interrogation about insurance coverage would be acceptable.

That this Court did not intend to infer in Hinton that simply being a policyholder of the same company insuring a defendant allows the injection of insurance is further supported by this Court's decision in Robins Engineering, Inc. v. Cockrell, 354 So.2d 1 (Ala.1977). In rejecting the plaintiff's contention that proof of an indemnity agreement was admissible to show bias, this Court distinguished Hinton and noted that the witness undergoing questioning in Hinton was "employed by the insurance company and his bias would be apparent." (Emphasis supplied.)

Hinton and the cases following it do indeed recognize that under certain circumstances a witness may have a sufficient degree of "connection" with the liability insurance carrier to justify allowing proof of this relationship as a means of attacking the credibility of the witness. What is missing in the present case is the sufficient degree of "connection." The coincidental fact that the witness and the defendants are both insured by MASA is not an adequate degree of connection to counter-balance the undue prejudice that will result to the defendants through alerting the jury to the existence of liability insurance.

The appellants offer two cases in support of their contention that proof of insurance may be offered to show bias. These cases are distinguishable from the case at bar. In Majestic v. Louisville & N.R. Co., 147 F.2d 621 (6th Cir.1945) the witness was an employee of a party who had an interest in the ultimate recovery in the case. The court stated that the witness's employment could be shown for the purpose of testing his credibility as a witness. Similarly, in Charter v. Chleborad, 551 F.2d 246 (8th Cir.1977), cert. denied 434 U.S. 856, 98 S.Ct. 176, 54 L.Ed.2d 128 (1977) a witness was called by the defense to criticize the reputation for truth and veracity of the plaintiff's expert witness. The witness called by the defense was an attorney who regularly defended physicians and "was employed in part by the same liability carrier" that provided professional liability insurance to the defendant-physician. All of the federal decisions upon which the appellants rely fall squarely within the narrow exception to the general exclusion of evidence of liability insurance that this Court outlined in Hinton, supra.

Two courts from other jurisdictions have been confronted with factual circumstances similar to those in the present case. In each instance, these courts have ruled that evidence that a witness was insured by the same liability carrier as the defendant was inadmissible. In Mendoza v. Varon, 563 S.W.2d 646 (Tex.Civ.App.1978), a medical malpractice action, Mendoza, the plaintiff, attempted to introduce evidence that Dr. Varon and one of his expert witnesses had professional liability insurance through the same insurance company. According to the Texas court, the fact that the witness was merely a policyholder of the same company did not present a sufficient degree of connection with the carrier to warrant proof of this relationship. The Court stated:

"In the present case, however, the witness had no direct interest in the outcome of the litigation, as would an agent, owner or employee of the defendant's insurer. While it is true that a large judgment against any doctor will probably affect the insurance rates of other physicians, this interest is remote, and any proof of bias based upon that interest is outweighed by the prejudice caused by...