Prowell v. Children's Hosp. of Alabama

• Decision Date: 12 May 2006
• Docket Number: 1041131.,1041493.
• Citation: 949 So.2d 117
• Parties: Kimberly Denise PROWELL, individually and as administratrix of the estate of Keiterica Deshae Holley, deceased v. The CHILDREN'S HOSPITAL OF ALABAMA. Kimberly Denise Prowell, individually and as administratrix of the estate of Keiterica Deshae Holley, deceased v. Kathryn Brock, M.D., and Pediatric Anesthesia Associates, P.C.
• Court: Alabama Supreme Court

949 So.2d 117

Kimberly Denise PROWELL, individually and as administratrix of the estate of Keiterica Deshae Holley, deceased v. The CHILDREN'S HOSPITAL OF ALABAMA.

Kimberly Denise Prowell, individually and as administratrix of the estate of Keiterica Deshae Holley, deceased v. Kathryn Brock, M.D., and Pediatric Anesthesia Associates, P.C.

1041131.

1041493.

Supreme Court of Alabama.

May 12, 2006.

Rehearing Applications Denied July 21, 2006.

G. Daniel Evans of Evans & Sexton, P.C., Birmingham; and Peter F. Burns of Burns, Cunningham, Mackey & Fillingim, Mobile, for appellant.

Jasper P. Juliano and J. Alex Wyatt III of Parsons, Lee & Juliano, P.C., Birmingham, for appellee The Children's Hospital of Alabama.

Michael A. Florie, Joseph S. Miller, and J. Wilson Axon, Jr., of Starnes & Atchison, LLP, Birmingham, for appellees Kathryn Brock, M.D., and Pediatric Anesthesia Associates, P.C.

STUART, Justice.

Kimberly Denise Prowell, individually and in her capacity as the administratrix of the estate of Keiterica Deshae Holley, deceased, appeals from a summary judgment in favor of the Children's Hospital of Alabama (case no. 1041131). Prowell also appeals from the trial court's denial of her motion for a new trial following a judgment entered on a jury verdict for Dr. Kathryn Brock and Pediatric Anesthesia Associates, P.C. (case no. 1041493).

In both case no. 1041131 and case no. 1041493, we reverse and remand.

Introduction

This medical-malpractice action results from complications from anesthesia administered during surgery. On October 21, 1998, Keiterica Deshae Holley, who was five years old, was admitted to the Children's Hospital of Alabama for a tonsillectomy. Holley was no stranger to surgery, having had five previous surgical procedures. She suffered from several medical conditions that, combined with her enlarged tonsils, made Holley a difficult patient for anesthesia.

On the day of her scheduled tonsillectomy, while the anesthesia team was preparing Holley for the surgery, i.e., inducing sleep ("induction") and intubating her, Holley suffered catastrophic complications, which caused her to be deprived of oxygen and adequate ventilation for at least five minutes and as long as seven minutes. Holley left the operating room in a vegetative state. She died on November 29, 2001, a little over three years later.

Prowell, Holley's mother, filed this action before Holley's death in her individual capacity and on behalf of Holley.¹ In the complaint, Prowell named as defendants (1) Dr. Kathryn Brock, the attending pediatric anesthesiologist in charge of the operating room the day of Holley's surgery; (2) Pediatric Anesthesia Associates, P.C., Dr. Brock's employer; (3) Dr. Larry Mackall, a shareholder in Pediatric Anesthesia Associates, P.C., and the anesthesiologist in charge of Holley's anesthesia prescreening; (4) Dr. Vijah Singh, an anesthesiologist who attempted to intubate Holley in the operating room; (5) Dr. Brian Wiatrak, Holley's ear, nose, and throat surgeon who also attempted to intubate Holley in the operating room; (6) the University of Alabama Health Services Foundation, Dr. Wiatrak's employer; and (7) Children's Hospital, based upon the acts of its employee Ann Gaston, a certified registered nurse anesthetist ("CRNA"), who also attempted to intubate Holley in the operating room.

Dr. Singh and Dr. Mackall filed separate motions for a summary judgment. Prowell did not oppose those motions, and the trial court entered summary judgments in favor of Dr. Singh and Dr. Mackall. Prowell later entered into a pro tanto settlement with Dr. Wiatrak and University of Alabama Health Services Foundation. This left as defendants Children's Hospital, Dr. Brock, and Pediatric Anesthesia Associates, P.C.

Children's Hospital filed a motion for a summary judgment asserting that Prowell had failed to establish a prima facie case against it and submitted documents in support of that motion. Prowell opposed that motion. After a hearing held on February 17, 2005, the trial court granted Children's Hospital's motion. On February 25, 2005, Prowell filed a motion to reconsider, which the trial court overruled.

Prowell's remaining claims against Dr. Brock and Pediatric Anesthesia Associates were tried before a jury, beginning February 28, 2005. The jury heard from Prowell; Dr. Brock; Dr. Singh (by deposition); Dr. Miles Dinner (Prowell's expert witness); Dr. Wiatrak (by deposition); and Dr. David Steward (Dr. Brock's expert witness). In addition, Prowell offered the deposition testimony of Dr. Raeford Brown at trial to rebut Dr. Brock's testimony and to bolster Dr. Dinner's testimony. Dr. Brock had previously identified Dr. Brown as a potential expert witness; however, after his deposition, Dr. Brock withdrew him as an expert witness. The trial court prohibited Prowell from introducing Dr. Brown's testimony at trial. The trial continued, with detailed medical testimony presented to the jury.

On March 8, 2005, the jury returned a verdict in favor of Dr. Brock and Pediatric Anesthesia Associates. On March 9, 2005, the trial court entered a final judgment on the jury's verdict. Prowell filed a motion for a new trial, asserting, among other grounds, that the trial court's ruling disallowing Dr. Brown's testimony was reversible error and that the trial court's instructions to the jury were so misleading and confusing as to prejudice Prowell's case. After a hearing, the trial court overruled that motion. Prowell appealed from the summary judgment in favor of Children's Hospital; that appeal is designated as case no. 1041131. Prowell also appealed from the denial of her motion for a new trial following the judgment entered on the jury verdict for Dr. Brock and Pediatric Anesthesia Associates; that appeal is designated as case no. 1041493.

In her appeal challenging the summary judgment for Children's Hospital, Prowell asserts the following issues:

"I. Whether the Children's Hospital in its motion for summary judgment made a prima facie showing by substantial evidence" that there was no genuine issue of material fact as to whether CRNA Gaston's alleged negligence was the proximate cause of Holley's injuries?

"II. Assuming, arguendo, that Children's [Hospital's summary-judgment] motion shifted the burden to the plaintiff, whether the plaintiff's response presented substantial evidence [creating a genuine issue of material fact] of a breach of the standard of care that was causal in the decedent's injuries and death?"

(Prowell's principal brief in case no. 1041131, at p. 5.)

In her appeal against Dr. Brock and Pediatric Anesthesia Associates, Prowell asserts the following issues:

"I. Whether the trial court erred when it prohibited the plaintiff from asking questions about or offering testimony from previously identified trial experts for [Dr. Brock] who had been deposed and listed as a trial witness?

"II. Whether the trial court erred when it charged the jury that a doctor is entitled to rely upon the opinion of another physician in good standing when the standard of care requires that an anesthesiologist must confirm the placement of the ventilation tube?"

Facts

On September 25, 1998 (approximately a month before her scheduled surgery), Holley was prescreened for anesthesia by a CRNA employed by Children's Hospital. That CRNA reviewed Holley's medical data and interviewed and examined Holley. The CRNA then created a prescreen report on Holley. It appears from notes on that prescreen report that the CRNA also interviewed Holley's mother. Among other things, that prescreen report indicated "trouble [with] airway according to mom." The prescreen report also indicated "small airway, limited mouth opening," and "difficult mask but saturation okay."² Dr. Mackall reviewed the CRNA's prescreen report and "signed off" on it.

On the morning of Holley's surgery, another CRNA ("CRNA Knight") examined Holley to ensure that no significant changes had occurred since her prescreening. CRNA Knight completed a checklist and handed that checklist to Dr. Brock, a board-certified pediatric anesthesiologist and the attending anesthesiologist in charge of Holley's anesthesia that day.

In preparing for the surgery, Dr. Brock reviewed the prescreen report; she also reviewed the medical records for Holley's most recent surgical procedure, which had occurred five months earlier. According to Dr. Brock, those notes indicated to her that during that previous surgery "[the anesthesia team] had no trouble visualizing the larynx, the epiglottis, the base of the cords . . . felt so comfortable with it, not only did they put one tube in, but they took it out and put a larger tube in." She also stated that, to her, that note indicated that, although Holley was a "difficult mask," just five months earlier an inhalation induction had been the appropriate procedure for Holley.

In administering Holley's anesthetic, Dr. Brock was assisted by Dr. Singh. Ann Gaston, a CRNA employed by Children's Hospital with 29 years of experience, was also present and was a member of the anesthesia team ("CRNA Gaston"). Because CRNA Gaston was in the recovery room attending to a patient who had had surgery earlier, she did not arrive at the operating room until after Holley's anesthesia induction had begun and did not meet Holley until after the anesthesia induction had begun.

Dr. Wiatrak was Holley's ear, nose, and throat specialist and the physician most familiar with Holley's medical conditions and problems. Dr. Wiatrak was to perform the tonsillectomy procedure on Holley. Dr. Brock indicated that she and Dr. Wiatrak had worked together on surgeries involving difficult airways for years.

As the anesthesiologist in charge, Dr. Brock was responsible for formulating the anesthesia plan for Holley. Dr. Brock developed her anesthesia plan in reliance on the prescreen report, which had been prepared by a CRNA and approved by Dr. Mackall. Dr. Brock also developed her...