Sorrell v. King

• Decision Date: 16 June 2006
• Docket Number: 1040517.
• Citation: 946 So.2d 854
• Parties: Christy SORRELL v. Dr. Daniel A. KING et al.
• Court: Alabama Supreme Court

946 So.2d 854

Christy SORRELL v. Dr. Daniel A. KING et al.

1040517.

Supreme Court of Alabama.

June 16, 2006.

Carey W. Spencer, Jr., Birmingham, for appellant.

Lyman H. Harris and W. Perry Webb of Porterfield, Harper, Mills & Motlow, P.A., Birmingham, for appellees Daniel A. King, M.D., and Eastside Women's Specialists.

Robert L. Williams of Spain & Gillon, LLC, Birmingham, for appellees Eastern Health System, Inc., and Medical Center East.

SMITH, Justice.

The plaintiff, Christy Sorrell, appeals from a summary judgment entered in favor of Dr. Daniel A. King, Eastside Women's Specialists, P.C., Eastern Health System, Inc., and Medical Center East, Inc., the defendants in her action seeking damages for medical malpractice, breach of implied contract, products liability, and breach of warranty. We affirm.

Facts and Procedural History

Dr. King is board-certified in obstetrics and gynecology. In July 2000, Sorrell consulted Dr. King because she was experiencing pelvic pain. After examining Sorrell, Dr. King recommended that Sorrell undergo a diagnostic surgical procedure to determine whether she had a cyst or a tumor in her abdominal or pelvic region. Dr. King testified that he made this recommendation based upon his examination of Sorrell, a review of Sorrell's medical records, her complaints of severe abdominal and pelvic pain, and the results of an ultrasound examination that had been performed earlier in July 2000. Dr. King testified that the ultrasound revealed that "there was suggestion of some type of process, be it a cyst or tumor or something else."

On July 7, 2000, Dr. King performed a "diagnostic/operative laparoscopy, lysis of adhesions, ablation of endometriosis[,] and cystoscopy" on Sorrell at a hospital operated by Medical Center East.¹ During the procedure, Sorrell was placed under general anesthesia. Before making an incision in Sorrell's abdomen, Dr. King inserted a uterine manipulator into Sorrell's cervix. Dr. King testified that the manipulator is "a device, whether permanent or reusable, that is attached either to the cervix or placed through the cervical opening to assist in moving the uterus and ovaries and tubes during a laparoscopy." Dr. King described the manipulator as device with "a large handle that looks sort of like a dome, which is connected to a shaft, at the end of which is a narrow piece that passes through the cervix up into the uterus, and has a retention balloon that can be insufflated to help keep it within the uterus." Dr. King also used an "adapter" in conjunction with the manipulator. The adapter is a component part of the manipulator that is used at the physician's option to modify the length of the manipulator. Dr. King testified that the adapter is "placed over the tip [of the manipulator] to modify the length of the tip." After the manipulator was inserted into Sorrell's cervix, Dr. King created an incision in Sorrell's abdomen so that he could view her abdomen and pelvis. Dr. King discovered "pelvic adhesions," which he cut away. Dr. King also discovered "endometriosis implants," which he "ablated" or destroyed. After the procedure was completed, Dr. King closed the incision sites and removed the manipulator. However, Dr. King did not notice that the adapter had separated from the manipulator and that the adapter remained inside Sorrell's cervix when he removed the manipulator.

On July 20, 2000, Sorrell saw Dr. King for a scheduled postoperative visit. Dr. King testified that the scheduled visit was so that he could examine the surgical sites and inquire about any problems. Sorrell alleges that she complained to Dr. King of pelvic pain, cramping, and depression. Dr. King did not perform a pelvic examination on Sorrell during the visit. Dr. King testified that he examined the incision sites and found that they were "healing well" and that he did not "recall [Sorrell's] making any significant complaints." He also testified that his notes from the visit indicate that Sorrell's pelvic pain had improved.

On August 3, 2000, Sorrell saw Dr. King to receive the first of two injections of Depo-Lupron, a medication that Dr. King prescribed to treat Sorrell's endometriosis. Dr. King testified that he prescribed the Depo-Lupron injections because Depo-Lupron "stops the production of estrogen for a limited period of time, so that [the] endometrial lesions can regress." Sorrell alleges that, during this scheduled visit, she again complained of pelvic pain, cramping, and depression. Dr. King testified that during the visit Sorrell complained that she had experienced some bleeding and cramping. In his treatment notes from the August 3, 2000, visit, Dr. King wrote that Sorrell complained that "she has been bleeding dark blood with some clots over the past six days" and that "[s]he is cramping." Dr. King also testified that the "bleeding was highly likely to be related to the fact that she had such a history of taking . . . Depo-Provera,[²] which can invoke irregular bleeding . . . or that it could have been related to the placement and removal of the uterine manipulator up into the endometrial cavity." Dr. King testified that during the visit he informed Sorrell that the injection of the Depo-Lupron would "likely cause the bleeding to stop." Dr. King did not perform a pelvic examination on Sorrell during this visit; he testified that he did not feel that a pelvic examination was necessary.

Sorrell saw Dr. King on November 10, 2000, to receive her second injection of Depo-Lupron. Dr. King testified that during this scheduled visit Sorrell complained that she was unhappy with the side-effects of the Depo-Lupron, that she had been very emotional, and that she was experiencing pelvic pain. Dr. King did not perform a pelvic examination on Sorrell during the visit. Because of Sorrell's complaints of persistent pelvic pain, Dr. King referred Sorrell to Dr. C. Paul Perry, a gynecological pain specialist, but Sorrell indicated to Dr. King that she did not want to see another doctor.

On April 2, 2001, Sorrell visited Dr. Dan Hudson. During a pelvic examination, Dr. Hudson removed the adapter that had been left in her cervix during the July 7, 2000, procedure. Dr. Hudson never testified in this case, but the record indicates that Dr. Hudson performed a surgical procedure on Sorrell in April 2001, after he had removed the adapter, to remove a hemorrhagic cyst from her ovary. Dr. King testified that the adapter could not have caused the formation of the cyst, and Sorrell does not allege that the retained adapter caused the formation of the cyst.

Sorrell sued Dr. King, Eastern Health System, Medical Center East, Eastside Women's Specialists,³ Dr. William A. Lemons,⁴ and various fictitiously named defendants. The complaint alleged (1) that Dr. King and various fictitiously named defendants negligently performed the July 7, 2000, surgical procedure;⁵ (2) that Dr. King and various fictitiously named defendants negligently examined Sorrell on July 20, 2000, August 3, 2000, and November 10, 2000;⁶ (3) that Eastside Women's Specialists and Dr. Lemons were vicariously liable for the negligent acts of Dr. King; (4) that Eastern Health System and Medical Center East are vicariously liable for the acts of various fictitiously named defendants —those agents or employees of Eastern Health System and Medical Center East who treated Sorrell on July 7, 2000;⁷ (5) that Eastern Health System and Medical Center East had breached an implied contract to provide Sorrell with adequate medical services; and (6) that various fictitiously named defendants had negligently or wantonly designed, manufactured, assembled, sold and/or distributed the uterine-manipulator device, had failed to adequately warn Sorrell of the dangers associated with the use of the uterine-manipulator device, had breached an implied warranty, and had breached an express warranty.⁸

On February 28, 2003, Dr. King filed a motion to compel, requesting that Sorrell be ordered to identify all the experts she planned to use in the case; to provide Rule 26(b)(4), Ala. R. Civ. P., information on those experts;⁹ and to provide a list of dates when the experts could be deposed. The trial court granted the motion on March 7, 2003, and ordered Sorrell to provide the requested information by March 15, 2003. After the trial court granted Dr. King's motion to compel, Sorrell identified Dr. Harland Giles as her expert. Sorrell also informed Dr. King that Dr. Giles would charge $750 per hour for the time he spent in deposition.¹⁰ On April 7, 2003, Dr. King filed a motion to compel Sorrell to provide additional information on Dr. Giles and any other experts she planned to use at trial and a motion to establish the hourly rate for Dr. Giles's deposition testimony. The motion stated that Sorrell "identified an expert, but provided no Rule 26(b) information." Dr. King also stated in the motion that Dr. Giles's fee of $750 per hour was unreasonable, and he requested that the trial court establish a reasonable hourly rate for Dr. Giles's deposition. On April 22, 2003, Sorrell provided Dr. King with additional information about Dr. Giles. Sorrell also notified Dr. King that "other doctors that have treated Ms. Sorrell since Dr. King's treatment will testify regarding their observations during examination and treatment of [Sorrell]." Sorrell identified the "other doctors" as Dr. Hudson and Dr. Francois Blaudeau. Sorrell also stated that she also "may call Dr. Kenneth Hall . . ., Dr. Gregory James and Dr. Bryant Poole." On April 24, 2003, in response to Dr. King's April 7, 2003, motion to compel, the trial court ordered Sorrell to provide within seven days the names and addresses of all expert witnesses she intended to use at trial and to provide a summary of the testimony expected to be given by the witnesses. The trial court also found that the hourly fee Sorrell claimed was required for the deposition of her expert, Dr. Giles, was unreasonable. The...