Pacifico v. Jackson

• Decision Date: 02 February 1990
• Parties: Dr. Albert D. PACIFICO v. Dr. Munford JACKSON. 87-834.
• Court: Alabama Supreme Court

Page 174

562 So.2d 174

Dr. Albert D. PACIFICO v. Dr. Munford JACKSON.

87-834.

Supreme Court of Alabama.

Feb. 2, 1990.

Rehearing Denied May 4, 1990.

Robert L. Williams of Norman, Fitzpatrick, Wood, Wright & Williams, Birmingham, for appellant.

Alex W. Newton of Hare, Wynn, Newell & Newton, and R. Gordon Pate of Pate, Lewis & Lloyd, Birmingham, for appellee.

ON APPLICATION FOR REHEARING

JONES, Justice.

Upon original consideration of this appeal, we reversed the trial court's judgment and remanded the cause. The application for rehearing is granted and, upon reconsideration, the judgment is affirmed. The original opinion, dated June 12, 1989, is withdrawn and the following opinion is substituted therefor.

Dr. Albert D. Pacifico appeals from a judgment based upon a jury verdict in favor of Dr. John M. Jackson in a medical malpractice action.

I. Statement of the Case and the Facts

In January 1981, Dr. Jackson underwent open heart by-pass surgery performed by Dr. Pacifico. As a prelude to the surgery, a monitoring device was inserted into Dr. Jackson's radial artery just above the wrist. To prevent possible dislodgment during surgery, the device was attached to Dr. Jackson's wrist with stitches. Upon awakening from surgery, Dr. Jackson complained of pain and numbness in three fingers on his right hand. In December 1982, Dr. Jackson filed suit against Dr. Pacifico. Dr. Jackson alleged that when Dr. Pacifico stitched the monitoring device to his wrist he permanently damaged the median nerve, resulting in pain in the right forearm and right shoulder and numbness in the right hand. Specifically, Dr. Jackson avers that, as a direct consequence of Dr. Pacifico's alleged negligence, he has suffered a major limitation in his ability to work as a general surgeon.

The case went to trial on December 1, 1987, and, on December 8, 1987, the jury returned a verdict in Dr. Jackson's favor, assessing damages in the amount of $1,650,000. The trial court entered judgment on the verdict. Dr. Pacifico filed a timely motion for new trial, or, in the alternative, for J.N.O.V.; and on February 24, 1988, he also filed a motion for relief from judgment pursuant to Rule 60(b), A.R.Civ.P. After a hearing, each of these motions was denied and this appeal followed.

The crux of Jackson's case was his assertion that Dr. Pacifico permanently damaged the median nerve in his right hand and that, as a proximate result, he suffered physical disability and mental anguish and his income was diminished. At trial and throughout the discovery phase of the case, Dr. Jackson maintained that, after the injury to his right hand, he had experienced difficulty in controlling certain surgical instruments and performing the finer, more meticulous surgical techniques.

During the course of the trial, a number of expert witnesses testified on Dr. Jackson's behalf. The substance of their expert opinions was to the effect that Dr. Jackson had suffered a permanent injury to the median nerve in his right hand due to a negligent performance of the surgical procedure by Dr. Pacifico.

Dr. Pacifico contended that Dr. Jackson's injury to his right hand was either the result of a fall in an elevator in 1978, in which he suffered a spinal cord injury, or the result of a stretch injury to the brachial plexus. Dr. John Gould (Dr. Pacifico's witness), an orthopedic surgeon who had studied the hospital charts, testified that a cervical spine injury could affect one or both hands and would not necessarily be equal.

With regard to Dr. Jackson's loss-of-income assertions, Grady C. Hartzog, a certified public accountant, testified that after reviewing the business records of Dr. Jackson, both the records before and those after the injury, he discerned a loss of income in excess of $1,000,000 from 1981 through 1986.

II. Issues Presented

The issues presented on appeal fall into two categories: 1) Allegations of trial errors; and 2) allegations of post-trial errors. Before addressing the separate issues, we note that none of the Justices would find error with respect to any of the issues relating to allegations of trial errors; but the Justices are sharply divided with respect to the allegations of post-trial errors--namely, the trial court's denial of the defendant's motion for a new trial based on the "newly discovered evidence" ground and the trial court's denial of the defendant's Rule 60(b) motion based on the "fraud on the court" ground. (The dissenting Justices express no opinion on the issue of "excessive damages," because, under their view of the case, they would not reach that issue.)

It is also noteworthy that the 5-4 division of the Court does not revolve around the correctness of the applicable principles of law, as set forth in this opinion; rather, it centers upon the application of those principles to the particular facts of this case. The majority is of the view that the facts fall short of crossing that line that separates "deference to the trial court's ruling" from the trial court's "abuse of discretion." The minority, on the other hand, strongly believes that, if the applicable legal principles contemplate any set of facts that may cross that line, those facts are present in this case.

Therefore, because our disagreement is focused upon what we perceive as a narrow policy call issue, we further perceive no useful purpose to be served by setting forth a lengthy analysis of the evidence of record.

III. Trial Error Issues

First, Dr. Pacifico urges that the count should have directed a verdict in his favor, because, he says, the plaintiff failed to prove that some act of Dr. Pacifico caused the injury. We disagree.

"A directed verdict is proper only where there is a complete absence of proof on an issue material to the claim or where there are no disputed questions of fact on which reasonable people could differ. Deal v. Johnson, 362 So.2d 214 (Ala.1978). In considering a motion for directed verdict, the court must apply Rule 50(e), ARCP, under which 'a question must go to the jury, if the evidence, or any reasonable inference arising therefrom, furnishes [so much as] a mere gleam, glimmer, spark, ... or a scintilla in support of the theory of the complaint....' Dixie Electric Company v. Maggio, 294 Ala. 411, 318 So.2d 274 (Ala.1975)."

Caterpillar Tractor Co. v. Ford, 406 So.2d 854, 856 (Ala.1981). ¹

We recognize that "[i]n a medical malpractice case, in order to find liability there must be more than a mere possibility that the alleged negligence caused the injury." Howard v. Mitchell, 492 So.2d 1018, 1019 (Ala.1986); and see Williams v. Bhoopathi, 474 So.2d 690 (Ala1985).

The testimony of Dr. Jackson's experts tended to show that the injury was caused by Dr. Pacifico's negligence in placing the sutures. The testimony of Dr. Pacifico's experts tended to contradict this. A jury issue was presented; a jury verdict was rendered; and the trial court entered judgment accordingly and subsequently overruled post-judgment motions. See Hill Air of Gadsden, Inc. v. Marshall, 526 So.2d 15 (Ala.1988).

Dr. Pacifico further contends that the trial court erred in failing to give requested written instructions on the issue of causation in medical malpractice cases. The trial court gave Alabama Pattern Jury Instruction (Civil) No. 33.00 on proximate cause as a part of its oral charge.

The language of that instruction states the standard by which a court is to judge whether summary judgment or a directed verdict is proper for the defendant; whether it is a question of law for the trial court. If the court determines that it is not, then the question for the jury is whether it is reasonably satisfied 1) that the defendant was negligent and, if so, then 2) that injuries complained of are the proximate result of the defendant's negligence. Because the trial court's original charge was adequate on this point, it did not err in refusing to give the requested charges. Bateh v. Brown, 293 Ala. 704, 310 So.2d 186 (1975); and see Rule 51, A.R.Civ.P.

Dr. Pacifico also contends that counsel for Dr. Jackson improperly commented on the failure of Dr. Pacifico to call certain witnesses:

"Now, in using your common sense about things, does this make any sense to you that on 8th Avenue and 20th Street we've got a medical school and no telling how many neurologists are there that can measure nerves and do EMG tests. Have you heard the voice of a single one?"

Reference to a particular witness's failure to testify is improper if the witness is equally available to both parties. Black Belt Wood Co. v. Sessions, 514 So.2d 1249 (Ala.1986); Harrison v. Woodley Square Apartments, 421 So.2d 101 (Ala.1982); C. Gamble, McElroy's Alabama Evidence, § 191.01(a) (3d ed. 1977). The comment objected to does not refer to the defendant's failure to call a particular witness, but rather to his failure to produce a particular kind of witness. In that sense, and when read in the context of the entire closing argument, it is clear that the comment was directed to the failure of the defendant to counter the testimony of Dr. Jackson's neurologists, or, in other words, the comment was designed to point out the defendant's failure to support his contentions. Therefore, we find no error.

IV. Post-trial Errors

We now address Dr. Pacifico's "newly discovered evidence" ground for his new trial motion. To fall within the definition of "newly discovered evidence," the evidence must have been in existence on the date of trial. See 6A J. Moore, Federal Practice § 59.08 (1982). Therefore, only those facts in existence at the time of trial are pertinent for our review of possible "newly discovered evidence."

This Court has previously written:

" 'The propriety of granting [a new trial] motion on the ground of newly discovered evidence must, in this state, be tested by the following settled rules:

" '(1) The evidence must be such as will probably change the result if a new trial is granted;

" '(2) The...