O'rear v. B.H.

• Decision Date: 11 March 2011
• Docket Number: 1090359.
• Citation: 69 So.3d 106
• Parties: Delane O'REAR, M.D.v.B.H.
• Court: Alabama Supreme Court

69 So.3d 106

Delane O'REAR, M.D.

v.B.H.

1090359.

Supreme Court of Alabama.

March 11, 2011.

Robert A. Huffaker, Thomas H. Keene, and William S. Haynes of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellant.Garve W. Ivey, Jr., of the Ivey Law Firm, Jasper, for appellee.COBB, Chief Justice.

B.H.¹ sued Dr. Delane O'Rear and Baptist Health Centers, Inc., Dr. O'Rear's employer, on October 22, 2001. In his complaint, B.H. alleged negligence, wantonness, medical malpractice, assault,² and the tort of outrage against Dr. O'Rear and negligent hiring, training, supervision, and retention against Baptist Health Centers, Inc. The claims against Baptist Health Centers, Inc., were dismissed before trial, as was Dr. O'Rear's third-party complaint seeking indemnity under his liability policy from his medical-malpractice insurer, Medical Assurance Company. The case was tried before a jury in Walker County on April 14–23, 2009, only on B.H.'s claims against Dr. O'Rear. At the conclusion of the presentation of the evidence, the case was submitted to the jury. The jury found in favor of B.H. and awarded compensatory damages of $1,000,000 and punitive damages of $2,000,000. The trial court entered a judgment on the verdict on April 24, 2009. Dr. O'Rear filed postjudgment motions seeking, alternatively, a judgment as a matter of law, vacation or alteration of the judgment, or a new trial. The postjudgment motions were argued before the trial court on August 11, 2009, and were denied. This appeal ensued.

The trial court's detailed order denying Dr. O'Rear's postjudgment motions summarizes much of the evidence presented at the trial. The trial court's order notes that B.H. had been a patient of Dr. O'Rear's but that there were factual discrepancies with respect to the time that B.H. had been a patient. The trial court stated:

“To first deal with the undisputed time periods, a jury could find substantial evidence to support the following facts:

“That V. Delane O'Rear was a physician practicing in Walker County, Alabama; that [B.H.] was a patient of the doctor; that Dr. O'Rear prescribed medicine to [B.H.] which included opiate based, and otherwise addictive, medicines; that during that time, Dr. O'Rear engaged in a homosexual relationship with [B.H.]; that [B.H.] expected, and Dr. O'Rear provided, prescriptions in exchange for sex; that during that time, [B.H.] reproduced on a copy machine certain of the prescriptions written by Dr. O'Rear, and upon presenting them at pharmacies, the copies were discovered; that Dr. O'Rear was notified, and [B.H.] was charged with a crime for that act; that having been notified, and being aware of this, Dr. O'Rear continued to treat [B.H.] and continued to write prescriptions for [B.H.] for opiate based medicines; that Dr. O'Rear had [B.H.'s] grandmother pick up prescriptions for [B.H.] at Dr. O'Rear's office; that on one occasion, Dr. O'Rear personally delivered a prescription to [B.H.'s] grandmother at a residence where she worked, and instructed her not to give the medicine to [B.H.] until [B.H.] was out of the store; that when he now considered the medical records of [B.H.], they contained what Dr. O'Rear admitted were warning signs of [B.H.'s] drug abuse or addiction; and that in spite of that, Dr. O'Rear continued to treat [B.H.] on until November 3, 1999, at which time [B.H.] recorded their last sexual encounter in Dr. O'Rear's office and [B.H.] never returned.”

The record supports the trial court's view of the evidence. We note further that the record indicates that Dr. O'Rear had practiced family medicine in Jasper for over 30 years and that he retired from the practice of medicine in 2003. With respect to Dr. O'Rear's testimony, the trial court's order denying the postjudgment motions states:

“Dr. O'Rear identified two versions of the Hippocratic Oath, and the applicable rule from the American Medical Association along with its annotations. He testified unequivocally and without objection that these applied to him and that they established the standard of care applicable to him concerning sexual contact with a patient. These were offered into evidence without objection. The jury could have found without question that these established the applicable standard of care, and that Dr. O'Rear's conduct, as set out above, violated the standard of care to which he himself had testified he was subject.

“....

“[B.H.] examined Dr. O'Rear as to his training, education and experience, and allowed him to identify the Hippocratic Oaths and the American Medical Association Rules. Dr. O'Rear, without objection, testified that those established standards of care to which he was bound. Dr. O'Rear testified that he took the Hippocratic Oath upon graduation from medical school, and that he broke his oath. Again without objection, Dr. O'Rear testified that based upon a hypothetical question from [B.H.], that if the jury believed that he engaged in the conduct substantially set out by the Court in this Order above, that it would be malpractice.... [T]here was competent testimony from an expert, not only similarly situated to Dr. O'Rear, but from the doctor himself, as the standard of care applicable and the violation of that standard.”

Again, this Court agrees with the trial court's summary of the evidence as elicited from Dr. O'Rear.

In addition to Dr. O'Rear's testimony concerning the medical and ethical standards under which he was obligated to conduct his practice, the trial court's order denying Dr. O'Rear's postjudgment motions discusses Dr. O'Rear's knowledge of B.H.'s dependence on the drugs Dr. O'Rear prescribed.

“Dr. O'Rear finally and reluctantly admitted that in reviewing [B.H.'s] medical records kept by Dr. O'Rear himself that there were telltale signs and warnings of addiction.

“In point of fact, it is undisputed that Dr. O'Rear continued prescribing addictive drugs to [B.H.] after [B.H.] used one of Dr. O'Rear's prescriptions to make copies on a copy machine to try to obtain more drugs, and went so far as to have [B.H.'s] grandmother pick up the prescriptions rather than putting them in [B.H.'s] hands. For a probation violation on this very charge, [B.H.] was ultimately incarcerated.”

With respect to the evidence that was in dispute, the trial court noted that there was substantial evidence showing that Dr. O'Rear exchanged addictive opiate drugs for sex with B.H. when B.H. was a minor and that he did so under circumstances not associated with Dr. O'Rear's medical practice, i.e., at locations other than Dr. O'Rear's office or in Dr. O'Rear's office but at times when Dr. O'Rear's medical office was closed. Although the record does contain one emergency-room record from 1991 showing Dr. O'Rear as B.H.'s family physician, Dr. O'Rear testified that no sexual encounters occurred with B.H. during B.H.'s minority, and he offered the absence of any medical records for B.H. for the period from 1992 to 1994, when B.H. was 14 to 16 years old, to confirm that fact. Dr. O'Rear and B.H. both testified as to incidents when B.H. claimed that a prescription Dr. O'Rear had written him had been accidentally lost or destroyed—“the puppy chewed them up”—and both testified that Dr. O'Rear always rewrote those prescriptions. Dr. O'Rear testified that his sexual relationship with B.H. began when B.H. was 20 years old and lasted approximately 18 months. Dr. O'Rear admitted to having approximately 15 to 20 sexual encounters with B.H. during that time. Dr. O'Rear stated that the relationship was consensual.

However, there was also evidence from B.H. and members of his family and various witnesses disputing Dr. O'Rear's evidence. There was evidence indicating that Dr. O'Rear was the physician for B.H.'s family and that B.H. had a patient-physician relationship with Dr. O'Rear that existed from the time B.H. was 11 or 12 years old until B.H. was 21 years old. According to testimony, when B.H. was 13 years old, his mother and stepfather divorced; B.H. was particularly close to his stepfather and suffered emotionally as a result. B.H.'s mother testified that she asked Dr. O'Rear to talk with B.H. about the divorce in an attempt to address B.H.'s distress. B.H. testified that his first sexual encounter with Dr. O'Rear occurred when he was in the eighth grade when, during a physical examination, Dr. O'Rear performed oral sex on B.H. B.H. recalled that after the first encounter Dr. O'Rear told him that this was “their little secret.” B.H. testified that thereafter during visits to Dr. O'Rear's office, he and Dr. O'Rear would engage in sexual acts, after which Dr. O'Rear would write him a prescription for an addictive drug. B.H. also testified that he would visit Dr. O'Rear's office after normal business hours when sexual acts would take place between him and Dr. O'Rear. B.H. further testified that sexual contact between the two also occurred at Dr. O'Rear's residence and at an office where B.H. was employed. According to B.H., he never had a sexual encounter with Dr. O'Rear for which he did not receive a prescription. B.H. testified, “If I wanted a prescription, then I had to perform oral sex or vice versa.”

B.H.'s family testified that before he was 14 years old he was a normal child who did well in school and who was interested in sports. However, his family began to notice changes in his behavior in his 14th year. B.H.'s stepfather testified that he noticed these changes and that as time progressed he began to suspect that B.H. had a drug problem. He also testified that he transported B.H. to Dr. O'Rear's office for appointments because B.H. was too young to drive. Members of B.H.'s family testified that around this time B.H.'s behavior became more erratic and that he would steal from his mother and other family members and he ceased participating in sports. B.H.'s high school girlfriend, B.N., testified that she often went with B.H. to Dr. O'Rear's office from the time B.H. was 15...