Pritchett v. Icn Medical Alliance, Inc.

• Decision Date: 10 March 2006
• Docket Number: 1041702.
• Citation: 938 So.2d 933
• Parties: Teresa PRITCHETT v. ICN MEDICAL ALLIANCE, INC.
• Court: Alabama Supreme Court

938 So.2d 933

Teresa PRITCHETT v. ICN MEDICAL ALLIANCE, INC.

1041702.

Supreme Court of Alabama.

March 10, 2006.

W. Lee Pittman and Elisabeth French of Pittman, Hooks, Dutton, Kirby & Hellums, P.C., Birmingham, for appellant.

H. Thomas Wells, Jr., and Katie Loggins Vreeland of Maynard, Cooper & Gale, P.C., Birmingham, for appellee.

LYONS, Justice.

Teresa Pritchett appeals from a summary judgment in favor of ICN Medical Alliance, Inc. We affirm the judgment in part, reverse it in part, and remand.

I. Facts and Procedural History

On January 5, 2001, Dr. Thomas Rumley leased from ICN an "Nlite" laser device, which is a "Class IV" laser used in cosmetic surgery and designed to reduce the appearance of wrinkles on a patient's skin. Dr. Rumley had never used an Nlite laser before he leased the laser from ICN. ICN sent one of its employees, Jeff Tisue, to provide technical advice to Dr. Rumley while he used the laser initially. ICN sent with the Nlite laser device two alternative forms of eye protection—goggles and a corneal shield—to be worn by patients during the laser procedure. Dr. Rumley performed the laser procedure on Pritchett using the Nlite laser device; Tisue was present during the procedure, which was intended to reduce the appearance of wrinkles around Pritchett's eyes.

During the course of the procedure, Dr. Rumley determined that the goggles being worn by Pritchett as eye protection were, in his opinion, either not providing sufficient protection or were obstructing his performance of the procedure. Tisue recommended to Dr. Rumley that he could use wet gauze instead of the protective devices ICN had provided with the laser device. Dr. Rumley agreed and used wet gauze, along with either his finger or a tongue depressor, to shield Pritchett's eyes from the laser beam. After the procedure, Pritchett discovered that her right eye had been damaged. Pritchett's expert witness testified in deposition that Pritchett's injury was consistent with the penetration of her eye by a laser beam.

Pritchett sued ICN and Dr. Rumley. As to ICN, Pritchett alleged, among other things, that ICN was vicariously liable for Tisue's negligence in recommending the use of wet gauze instead of the eye protection provided with the Nlite laser device and that ICN had negligently and wantonly failed to properly train and supervise Tisue. As to Dr. Rumley, Pritchett alleged medical malpractice.

Dr. Rumley moved for a summary judgment on Pritchett's medical-malpractice claim, and ICN moved for a summary judgment on Pritchett's claims that it was vicariously liable for Tisue's actions and that it had negligently and wantonly failed to properly train and supervise Tisue. Pritchett informed the trial court that she would not contest Dr. Rumley's motion, but she did contest ICN's. Based on briefs and oral arguments, the trial court granted ICN's motion. Subsequently, the trial court granted Dr. Rumley's motion, stating: "Plaintiff having conceded [the] same." The trial court certified its summary judgment for ICN as final under Rule 54(b), Ala. R. Civ. P. Pritchett appealed.

II. Standard of Review

"The standard of review applicable to a summary judgment is the same as the standard for granting the motion...." McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala. 1992).

"A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala.R.Civ.P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present `substantial evidence' creating a genuine issue of material fact—`evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)."

Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala. 1994). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).

III. Analysis

A. Respondeat Superior

i.

ICN does not dispute that when Tisue suggested using wet gauze instead of the goggles or corneal shield provided by ICN with the Nlite laser device, Tisue was acting within the line and scope of his employment with ICN. Therefore, Pritchett contends, if she presented substantial evidence indicating that Tisue committed tortious acts that proximately caused her injury, ICN can be held liable. See generally Ex parte Wild Wild West Soc. Club, Inc., 806 So.2d 1235, 1241 (Ala.2001) ("Under a theory of respondeat superior, a principal can be held liable for a tort committed by his agent only if the agent commits the tort while working within the line and scope of his employment.").

In support of the summary judgment in its favor, ICN relies on the fact that Pritchett failed to contest Dr. Rumley's summary-judgment motion. ICN points out that Dr. Rumley submitted with his motion an affidavit in which he stated (a) that he did not breach the standard of care applicable to plastic surgeons in the local and national community and (b) that his actions did not cause Pritchett's injury. ICN contends that, because Pritchett did not contest Dr. Rumley's summary-judgment motion, all of the allegations of Dr. Rumley's affidavit must be taken as uncontroverted. ICN cites Harold Brown Builders, Inc. v. Jordan Co., 401 So.2d 36, 38 (Ala.1981), in which this Court stated:

"Although an adverse party is not required to respond to a motion for summary judgment, this court has noted failure to do so may be perilous for the adverse party. Ray v. Midfield Park, 293 Ala. 609, 308 So.2d 686 (1975). By defendant's failure to respond to the motion, the trial court had no alternative but to consider the evidence presented by the moving party as uncontroverted."

In Harold Brown Builders, this Court held that, because the nonmoving party failed to contest the summary-judgment motion, the trial court had to consider as uncontroverted the evidence presented by the summary-judgment movant. But the Court in Harold Brown Builders was speaking in the context of the trial court's consideration of a single summary-judgment motion that was before it. The Court there was not considering the effect of the nonmovant's failure to contest one defendant's summary-judgment motion on the separate motion for a summary judgment filed by a codefendant, and we have found no Alabama cases addressing that particular issue.

Assuming that the failure to contest one defendant's summary-judgment motion can ever be considered in determining whether a plaintiff conceded an element of a claim against another defendant, we must determine what Pritchett actually conceded. In response to Dr. Rumley's motion, Pritchett sent the trial court a letter stating only: "Dr. Rumley has recently filed a Motion for Summary Judgment. The plaintiff has no opposition. Thank you for your attention in this matter." Taken alone, this relatively broad statement might be considered a concession that Dr. Rumley did not breach the standard of care and that his use of wet gauze as eye protection, instead of the goggles or corneal shield provided with the laser device, did not cause Pritchett's injury. A logical progression from the foregoing supposition would lead to the conclusion that, if using wet gauze instead of the provided eye protection was not a breach of the standard of care because wet gauze is appropriate eye protection when a laser beam is being used, then Tisue cannot be said to have breached the standard of care by suggesting that form of eye protection be used. It is also logical to conclude that, if Dr. Rumley's use of wet gauze was not the actual cause of Pritchett's injury, then neither was Tisue's suggestion that Dr. Rumley use wet gauze to protect Pritchett's eyes during the procedure.

However, in response to ICN's motion for a summary judgment, Pritchett argued that she had presented evidence indicating that wet gauze was not proper eye protection when a laser beam is being used. She also argued that she had presented sufficient evidence indicating that the use of wet gauze instead of goggles or a corneal shield caused her injury. Indeed, Pritchett's concession of Dr. Rumley's motion is consistent with another supposition: that Dr. Rumley's acquiescence in Tisue's recommendation that he could use wet gauze instead of the protective devices provided with the laser device did not breach the standard of care applicable to Dr. Rumley, who was not an expert on the operation of the Nlite laser device, as was Tisue. Consistent with the foregoing interpretation of her concession, Pritchett states in her reply brief: "Pritchett's decision not to secure a qualified medical standard-of-care expert to challenge Dr. Rumley's self-assessment of his compliance with the applicable standard of care for a board-certified plastic surgeon provided no benefit to Jeff Tisue or ICN." In light of Pritchett's arguments below in opposition to ICN's motion for a summary judgment and the ambiguity of the scope of the concession as to Dr. Rumley's motion, we find it unreasonable to conclude that Pritchett by indicating she was not opposed to Dr. Rumley's summary-judgment motion conceded that Tisue's recommendation of the use of wet gauze was appropriate or that Dr. Rumley's actions pursuant to that recommendation did not cause her injury.

ii.

Unless Tisue owed a duty to Pritchett to provide accurate information to Dr. Rumley regarding...