Sweeney v. Purvis

• Decision Date: 09 June 1995
• Citation: 665 So.2d 926
• Parties: Dr. Gerald SWEENEY and Alabama Physical Medicine Consultants, P.C. v. Flora Mae PURVIS, as administratrix of the Estate of Lynda Diana Segars, deceased. 1931170.
• Court: Alabama Supreme Court

Page 926

665 So.2d 926

Dr. Gerald SWEENEY and Alabama Physical Medicine Consultants, P.C. v. Flora Mae PURVIS, as administratrix of the Estate of Lynda Diana Segars, deceased.

1931170.

Supreme Court of Alabama.

June 9, 1995.

Rehearing Denied July 21, 1995.

Richard B. Garrett and N. Wayne Simms of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellants.

Timothy C. Davis of Heninger, Burge & Vargo, Birmingham, M. Dale Marsh of Cassady, Fuller & Marsh, Enterprise, for appellee.

SHORES, Justice.

This is a wrongful death/medical malpractice action in which Flora Mae Purvis, as administratrix of the estate of Lynda Diana Segars, initially sued Dr. Gerald A. Sweeney and Montgomery Rehabilitation Hospital (hereinafter "Montgomery Rehab"). ¹ Purvis later amended her complaint to include Dr. Sweeney's employer, Alabama Physical Medicine Consultants, P.C. Dr. Sweeney and Alabama Physical Medicine Consultants, P.C., appeal from a $500,000 judgment based on a jury verdict for the plaintiff. We affirm.

Mrs. Segars was admitted to Southeast Medical Center in Dothan, Alabama, on July 1, 1991, after having been struck by her husband, Ed. She was diagnosed as having a closed head injury, more specifically, a brain infarction, resulting from repeated physical abuse by her husband. On July 11, 1991, Mrs. Segars was transferred to Montgomery Rehab, which is a rehabilitation hospital, as opposed to an acute care facility. Patients must be medically stable in order to be admitted to Montgomery Rehab and must have received some prior therapy.

From the time of her admission on July 11 to the time of her death on July 15, Mrs. Segars was under the care of Dr. Sweeney, a licensed physician and a board-certified physiatrist--a physical medicine and rehabilitation specialist. ² At the time of Mrs. Segars's admission, Dr. Sweeney saw her and noted that she had deficits with speech and daily life activities as a result of her closed head injury.

On Friday, July 12, 1991, which was Mrs. Segars's first full day of treatment and therapy at Montgomery Rehab, she attended both morning and afternoon therapy sessions; she had no complaints, although she needed some assistance with tasks, such as grooming and dressing. On Saturday, she attended both therapy sessions again, but, at 2:30 p.m., she complained of a cramp-like pain in her left leg. The staff administered an analgesic, but it did not relieve her pain. At 5:00 p.m., she again complained of pain, which she said was then in her lower left heel. Dr. Sweeney was notified by telephone by the nursing staff, and he ordered that a "K-pad," or a special heating pad, be applied to Mrs. Segars's left leg.

Mrs. Segars experienced little, if any, pain during that evening, but on Sunday her left leg appeared swollen. She remained in bed, refused pain medication, and experienced pain in her leg when she tried getting up to go to the bathroom. The day shift licensed practical nurse, Aileen Garrett, noted a positive result from Mrs. Segars's "Homans' sign," which is the result of a manual test whereby the patient's leg, while the patient is lying flat on the bed, is flexed toward her body to see if she experiences any pain and thus could possibly be experiencing a blood clot. ³

The parties dispute what occurred next. Bonita Cook, the registered nurse on duty Sunday, testified that when she administered the Homans' sign test following Nurse Garrett's notification, the result was also positive and, therefore, that her supervisor, head registered nurse Linda Flemming Bell ⁴ was contacted. According to Nurse Cook, Nurse Bell stated that she would contact Dr. Sweeney. However, Nurse Bell said she does not remember Nurse Cook telling her about Mrs. Segars's condition and does not remember contacting Dr. Sweeney about it. Dr. Sweeney said he does not remember being contacted at all on the Sunday in question and stated that the contact he recalled was on Saturday, concerning the left leg cramp. Nurse Cook allegedly confirmed later that Dr. Sweeney had been contacted, but whether this contact took place on Saturday or Sunday is not clear. Nurse Bell testified that, routinely, if a doctor is notified about a patient, then that fact is documented in a patient's records. Finally, Nurse Cook also stated that she did not notify the oncoming shift nurse of Mrs. Segars's positive Homans' sign and pain complaints, as was normal procedure, because she was informed that Dr. Sweeney had been contacted. Nurse Bell testified that Nurse Cook could have contacted Dr. Sweeney directly, but did not do so. Neither the nurse's notes, the doctor's orders, nor the interdisciplinary progress notes indicate that Dr. Sweeney was notified about a positive Homans' sign.

On Monday, Karen Dean, a certified family nurse practitioner, was asked to examine Mrs. Segars. After learning of Mrs. Segars's weekend complaints of left leg soreness, Dean and the registered nurse on duty, Laurie Wilson, examined her. They determined that the Homans' test sign was negative, that there was no apparent swelling in her left leg from blood clots, but that her left calf was slightly larger. They were concerned about getting Mrs. Segars up for therapy because such movement could cause a blood clot to break off and move to the lung.

At approximately 9:00 a.m. on Monday morning, Dr. Sweeney was informed by telephone of Mrs. Segars's condition, but he ordered the nurses to go ahead and get her up for morning therapy. Although he was on call that weekend, Dr. Sweeney had not seen Mrs. Segars on either Saturday or Sunday and he did not see her before her death on Monday. While he said he does not recall where he was, he admits that it is possible that he was at his lake home on Lake Martin, some 40 miles away. Hospital policies require the physician on call to be in the immediate vicinity of the hospital.

At 12:20 p.m., while eating lunch in the dayroom after therapy, Mrs. Segars became unresponsive; she was shaking, appeared blue, and had "pinpoint" pupils. When paramedics arrived, she had stopped breathing and had no pulse. She was transported to Jackson Hospital, and she died shortly thereafter.

According to an autopsy performed on July 16, 1991, by Dr. James R. Lauridson, the state medical examiner, the manner of death was homicide, ⁵ but he stated the following opinion:

"It is my opinion that Lynda Diane [sic] Segars, a 42-year-old white female, died as a result of pulmonary emboli [the obstruction of an artery in a lung] arising from deep vein thrombophlebitis [a blood clot]. Deep vein thrombophlebitis is related to incapacitation arising from a brain stem infarction associated with traumatic occlusion of the left vertebral artery."

Plaintiff's Exhibit No. 3; see 3 J.E. Schmidt, M.D., Attorney's Dictionary of Medicine and Word Finder, P-378 (1990).

The case was tried, and the jury awarded $500,000 in wrongful death damages. Dr. Sweeney and Alabama Physical Medicine Consultants, P.C., moved for a new trial; the court denied their motion, and they appealed.

The first issue is whether the trial court erred in admitting Plaintiff's Exhibit No. 12, a photograph of the decedent, Mrs. Segars, with her daughter, Gina Griffin, taken during Griffin's 16th birthday party in Mrs. Segars's Montgomery Rehab room two days before her death. The defendants argue that it was not relevant and was more prejudicial than probative. We hold that the trial court did not abuse its discretion in admitting the photograph.

The defendants contend that showing the jury the photograph during Griffin's testimony was intended solely to--and did--provoke Griffin's emotions, ⁶ and that it did not tend to prove negligence or that negligence caused Mrs. Segars's death. The defendants also argue that the photograph had no probative value because it depicts Mrs. Segars only from the waist up, in a wheelchair, and does not show her left leg, the area of her body where the blood clot formed. They argue that the photograph presents no evidence that Dr. Sweeney proximately caused Mrs. Segars's death.

Purvis contends that the photograph was properly admitted because Mrs. Segars's cause of death was an issue at trial. Purvis basically states that the issue does not involve how Mrs. Segars got to the hospital but what caused her to die once she was at Montgomery Rehab, and she contends that the photograph is relevant and probative for that purpose.

As both sides concede, the trial court has great discretion in determining whether evidence, even evidence of minor probative value is relevant and whether it should be admitted or excluded. E.g., Ryan v. Acuff, 435 So.2d 1244, 1247 (Ala.1983); Harper v. Baptist Medical Center-Princeton, 341 So.2d 133, 135 (Ala.1976); C. Gamble, McElroy's Alabama Evidence § 21.01(6), § 207.01(4) (4th ed. 1991); see Smith v. Brownfield, 553 So.2d 573, 577 (Ala.1989); AmSouth Bank, N.A. v. Spigener, 505 So.2d 1030, 1041 (Ala.1986). Furthermore, according to Maffett v. Roberts, 388 So.2d 972, 976 (Ala.1980):

"A photograph is relevant and admissible in order to explain and apply the evidence when it helps the jury to better understand the persons, objects, locale or conditions which are in issue. However, the application of this evidentiary rule is within the sound discretion of the trial court, both as to the photograph's initial identification and reliability and to its probative or prejudicial qualities. This discretion is not reviewable in the absence of a gross abuse of that discretion. Moon v. Nolen, 294 Ala. 454, 318 So.2d 690 (1975)."

(Emphasis added.) E.g., Williston v. Ard, 611 So.2d 274, 279 (Ala.1992); Olympia Spa v. Johnson, 547 So.2d 80, 83 (Ala.1989); see also C. Gamble, McElroy's Alabama Evidence § 123.03(2) (4th ed. 1991).

In most wrongful death actions, when a photograph pertains to a disputed, material issue, further explains some relevant fact, or tends to bolster or disprove some other evidence, it is admitted;...