Smith v. Fisher
| Decision Date | 30 August 2013 |
| Docket Number | 1120445,1120470 |
| Parties | Toma E. Smith, as personal representative of the estate of Tiffani P. Smith, deceased v. Dr. Winfield S. Fisher III et al. Dr. Winfield Fisher III and University of Alabama Health Services Foundation v. Toma E. Smith, as personal representative of the estate of Tiffani P. Smith, deceased |
| Court | Alabama Supreme Court |
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
Appeals from Jefferson Circuit Court
Toma E. Smith, as personal representative of the estate of Tiffani P. Smith, appeals from a summary judgment entered in favor of Dr. James Fleming and from a judgment entered on a jury verdict in favor of Dr. Winfield S. Fisher III and the University of Alabama Health Services Foundation ("the Foundation") on claims brought pursuant to the Alabama Medical Liability Act, § 6-5-480 et seq. and § 6-5-540 et seq., Ala. Code 1975 ("the AMLA"). Dr. Fisher and the Foundation cross-appeal, asserting, in relevant part, that the action should have been dismissed as being void ab initio.
Tiffani P. Smith was seen at University of Alabama at Birmingham Hospital ("UAB Hospital") on October 31, 2007, after complaining of severe headaches for approximately two weeks. A CT scan of Tiffani's brain revealed the presence of a large unruptured intracranial aneurysm on the ophthalmic artery. Tiffani was placed in the care of Dr. Fisher, a board-certified neurosurgeon in UAB Hospital's Department of Neurosurgery, who recommended performing surgery to repair theaneurysm. Dr. Fisher had been practicing neurosurgery for approximately 35 years, was a full professor of neurosurgery at UAB Hospital, and was the director of the Neurosurgery Intensive Care Unit ("NICU") at the hospital. Tiffani was admitted to the hospital the evening of October 31, 2007, and was administered intravenous ("IV") fluids and medications, including antibiotics, pain medications, and corticosteroids pursuant to Dr. Fisher's standing template of orders for neurosurgery patients. Dr. Fisher ordered that Tiffani continuously receive maintenance IV fluids at the rate of 125 cc's per hour during the pendency of her stay in the hospital.
Dr. Fisher performed an open craniotomy to "clip" the aneurysm on Thursday, November 1, 2007. The surgery to repair the aneurysm was successful; Tiffani experienced no complications during the procedure. Tiffani was taken to the NICU postoperatively for observation and recovery. She was continued on the medications and fluids that had been ordered upon admittance to the hospital.
On Friday, November 2, 2007, Dr. Fisher ordered an additional CT scan and an arteriogram as part of his routine follow-up care for neurosurgery patients in order to confirmthat Tiffani was recovering from the surgery as expected and experiencing no complications. The CT scan indicated that there was a small amount of residual blood at the surgery site and a little swelling, which was not uncommon after surgery. The tests confirmed that the "clip" was properly placed on the aneurysm. Dr. Fisher determined that Tiffani's recovery was progressing well and released her from the NICU to a regular room on the "floor."
Toma E. Smith, Tiffani's husband, stated that Tiffani began complaining of headaches between approximately 10:00 p.m. and 11:00 p.m. on the evening of Friday, November 2. Toma also testified that on several occasions that evening Tiffani failed to recognize him and asked him who he was.
Dr. James Fleming, a third-year resident physician training in neurosurgery at UAB hospital, was making rounds at approximately 7:00 a.m. on the morning of Saturday, November 3, 2007, when he discovered that Tiffani was in distress. Dr. Fleming testified that, at that time, Tiffani was confused and that, although she was cooperative, she failed to give good effort on the motor-reflex examination he administered, which consisted of asking Tiffani certain questions and to performcertain movements. Tiffani's most recent lab work taken in the early morning hours of Saturday, November 3, indicated that her sodium level was at 133 milliequivalents per liter ("mEq/L"), which is on the low end of the normal range.1 Dr. Fleming was informed by the nurse present that the IV line was malfunctioning due to a small leak, which made it impossible to know the amount of IV fluids that Tiffani had received up until that point in time; however, she had not received the amount that she had been prescribed. Dr. Fleming was concerned about Tiffani's mental status and determined that she needed to be assessed for intracranial pathology. Dr. Fleming ordered a CT scan and that Tiffani be transferred to the NICU. Additionally, Dr. Fleming ordered 500 cc's of normal saline fluid because of the lower sodium-level reading and the malfunctioning IV line.2 Those are orders that Dr. Fleming was authorized to make as a third-year resident. Shortly aftermaking these orders, Dr. Fleming contacted Dr. Fisher to inform him of Tiffani's condition and of his orders.
Toma testified that he lay down on the couch after Dr. Fleming left the room. At approximately 7:30 a.m. he noticed that Tiffani began snoring loudly. Toma called for a nurse, who entered the room and could not get Tiffani to respond to oral commands. Toma noticed a tear running down Tiffani's cheek and liquid bubbles coming out of her mouth. The nurse sounded an alarm for a "MET" team to respond; Tiffani had gone into respiratory arrest but was resuscitated.3
After being resuscitated, Tiffani was taken at approximately 8:45 a.m. for the CT scan that had been ordered by Dr. Fleming. The CT scan showed some residual blood at the site of the aneurysm repair and early onset swelling of the brain. After receiving the results of the CT scan and discussing the matter with each other, Dr. Fisher and Dr. Fleming suspected that Tiffani was suffering from vasospasm.4Although vasospasm is not common in the case of an unruptured aneurysm, Dr. Fleming testified that the amount of residual blood caused by the aneurysm repair itself was sufficient to trigger vasospasm.
Tiffani was received in the NICU at approximately 9:00 a.m., and her maintenance dose of 125 cc's of normal saline fluids was continued at that time. Dr. Fleming performed a neurological examination of Tiffani, the results of which indicated that she had no brain activity. Dr. Fleming tested cough reflex, gag reflex, pupillary light reaction, and did a corneal analysis. Dr. Fleming did not detect any functional cranial nerves during the examination. Tiffani's pupils also remained dilated to 5 millimeters, which is indicative of severe brain-stem injury. Dr. Fisher testified that Tiffani died sometime between 8:45 a.m. and 9:00 a.m., when her brain herniated through the base of her skull.5 He stated that Tiffani's treatment was continued because "the catastrophic nature of her death ... mandated that we exclude allpossibilities ... and that we gave ourselves and the family ample time to feel comfortable that we had done everything we could."
Tiffani was started on "HHH" therapy, which is the treatment protocol for vasospasm. "HHH" is an acronym for hypertension, hemodilution, and hypervolemia. The treatment protocol for vasospasm calls for increased blood-pressure repressors (hypertension); decreasing the viscosity of the blood, i.e., thinning the blood (hemodilution); and keeping the intravascular volume full by giving plenty of IV fluids (hypervolemia). The purpose of the "HHH" therapy is to promote blood flow through constricted vessels. Dr. Fleming testified that Tiffani was started on the "HHH" therapy before he received the results of the CT scan that he had ordered.
Tiffani's sodium levels had been trending down from a level of 141 mEq/L at 1:00 a.m. on the morning of Friday, November 2, to a level of 133 mEq/L at the time she was first seen by Dr. Fleming. Although the sodium levels had been trending down, they remained within the normal range. However, immediately after being transferred to the NICU, Tiffani's sodium level had dropped to 128 mEq/L which,according to Dr. Fisher, was a cause for concern. Dr. Fisher ordered hypertonic saline in order to amend the low sodium level, i.e., hyponatremia, and to treat intracranial pressure resulting from brain swelling that had begun.6 Hyponatremia in neurological patients generally results from cerebral salt-wasting syndrome, which is caused by brain injury or brain trauma. A ventriculostomy was placed at approximately 9:45 a.m. in order to measure and to relieve the pressure on Tiffani's skull. Additionally, Dr. Fisher ordered antibiotics and an anti-epileptic medication for the treatment of possible sepsis and seizure, which Dr. Fisher thought might be a possible cause of Tiffani's rapidly declining condition, albeit less likely than vasospasm.
Tiffani also began to experience the onset of diabetes insipidus shortly after being transferred to the NICU. Diabetes insipidus is a condition characterized by the output of large volumes of diluted urine. Dr. Fisher stated that diabetes insipidus is a terminal event in patients that have had a head injury. The treatment protocol for diabetes insipidus calls for administering vasopressin, an antidiuretic hormone that regulates the body's retention of water, and large volumes of fluids to replace the fluids lost, i.e., the patient receives a cc input of fluid per cc output of fluid. Dr. Fisher ordered both vasopressin and large volumes of fluid for Tiffani.
Tiffani failed to respond to the treatments administered by Dr. Fisher and Dr. Fleming. An EEG was performed...
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