Taylor v. Baptist Medical Center, Inc.

• Citation: 400 So.2d 369
• Parties: Robin TAYLOR v. BAPTIST MEDICAL CENTER, INC., a Corporation, and Dr. Herman Hassell. 79-309.
• Decision Date: 24 April 1981
• Court: Supreme Court of Alabama

Page 369

400 So.2d 369

Robin TAYLOR v. BAPTIST MEDICAL CENTER, INC., a Corporation, and Dr. Herman Hassell.

79-309.

Supreme Court of Alabama.

April 24, 1981.

Rehearing Denied June 12, 1981.

John A. Taber and J. McGowin Williamson, Greenville, for appellant.

Thomas H. Keene and Charles Stakely, Jr., of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellees.

BEATTY, Justice.

This is an appeal from a judgment which was granted in favor of a physician and hospital. We affirm in part, reverse in part, and remand.

Mrs. Robin Taylor was under the obstetrical care of Dr. Herman Hassell when, approximately twenty-three weeks into her pregnancy, she underwent an emergency appendectomy. At that time, Mrs. Taylor's surgeon explained to her that the surgery could have an adverse effect upon her pregnancy. Three weeks later Mrs. Taylor began to experience labor pains. When Dr. Hassell was notified of this fact at 3:00 a. m., he instructed her to go Baptist Medical Center Hospital. Although the nurses at Baptist kept him apprised of Mrs. Taylor's progress via several telephone conversations, Dr. Hassell did not arrive at the hospital until ten minutes after Mrs. Taylor had delivered at 11:30 a. m. The child was either stillborn or died within moments of birth. Mrs. Taylor was attended by two nurses throughout her labor and delivery. No physician was present during this time.

Mrs. Taylor filed suit against Dr. Hassell and Baptist Medical Center Hospital. The claim against Dr. Hassell consisted of a count in negligence and breach of contract of care. The claim against Baptist was for negligence in failing to notify Dr. Hassell, and in failing to provide another physician or other competent medical attendants. Because of this conduct she alleges that she suffered physical pain and mental anguish. There is no claim for wrongful death of the child. The medical testimony was uncontradicted that because of the age and stage of the fetus, i. e., weight of one pound, eight ounces, fused eyelids, transparent skin with no subcutaneous tissue, nothing could have been done which might have saved the child's life.

In support of their motions for summary judgment, the defendants offered the depositions of the two nurses who were on duty during Mrs. Taylor's labor and delivery; the deposition of Dr. Dorrough, the Chief of Services for the Baptist Medical Center Obstetric Unit; and the deposition of Dr. Hassell. Mrs. Taylor responded by offering her own deposition in addition to those offered by the defendants. All three parties submitted briefs and orally argued their respective positions. After a review of the materials submitted, the trial judge granted both defense motions. Specifically, he found no genuine issue of material fact with regard to the liability of Baptist, either as to negligence, or proximate causation. Further, he found that Mrs. Taylor failed to offer any evidence to establish that she suffered any damage, either mental, emotional or physical, because of Dr. Hassell's failure to attend, nor did she have any compensable damages because the emotional distress she suffered was inseparable from that suffered as a result of the loss of her child.

I

Mrs. Taylor contends summary judgment was improperly granted on her claim that Baptist negligently failed to "notify her physician, or obtain a physician for her or to supply her with competent medical attendants in the delivery of her child." We disagree.

The evidence is clear that the nurses at Baptist notified Dr. Hassell of Mrs. Taylor's admittance and progress. She relies upon Birmingham Baptist Hospital v. Branton, 216 Ala. 326, 113 So. 79 (1927), for the proposition that the negligence of the nurses in failing to call her physician is a jury question, and not a matter for expert testimony. That proposition is thus inapplicable to this case. In Branton the nurses failed to comply with the plaintiff's repeated requests to notify her obstetrician of the imminent birth of her child. In this case, on the other hand the evidence is uncontroverted that the nurses notified Dr. Hassell and kept him informed of Mrs. Taylor's progress.

The issue of whether Baptist acted negligently in failing to obtain another physician in Dr. Hassell's absence is answered by reference to testimony that Dr. Hassell told the nurses he would be "right on over" thus leading the nurses to reasonably conclude no other physician would be needed as well as the following deposition testimony of Dr. Dorrough:

Q. Based upon your examination of the records, do you have an opinion as to whether the nurses ... and the Montgomery Baptist Hospital exercised with Robin Taylor the same degree of care, skill and diligence as hospitals in this community ordinarily have and exercise in a similar case?

A. Yes.

Q. In your opinion, did they?

A. They did.

Q. Did you see any hospital malpractice in connection with this case?

A. No.

Finally, the evidence is uncontroverted that Baptist did in fact supply Mrs. Taylor with competent medical attendants in the delivery of the child. Both nurses who attended Mrs. Taylor throughout her labor and delivery were well qualified nurses with considerable experience in the area of childbirth.

Based upon the evidence and testimony of Dr. Dorrough, we conclude that summary judgment was properly entered in favor of Baptist Medical Center.

II

Mrs. Taylor's claim that summary judgment was improperly granted on her tort claim against Dr. Hassell, i. e., that he acted negligently when he failed to attend during her labor and delivery, is well taken.

Mrs. Taylor seeks to recover for the mental anguish she suffered as a result of Dr. Hassell's failure to attend. We note that Mrs. Taylor has described the consequences of Dr. Hassell's conduct as "great physical pain and mental anguish." It is clear that she has claimed no actual physical injury. Historically, the rule governing recovery of damages for such claims was:

Where there has been a physical injury to a person, under circumstances warranting the recovery of compensatory damages therefor, mental suffering, which is a natural incident thereto, furnishes one of the elements of recoverable damages, and in such case the jury may always consider the element of mental suffering and award compensation therefor. The body and mind are so closely connected that the mind is, of necessity, affected by any injury to the body. 8 A. & E. Ency. of Law, pp. 662, 663, 664. While there have been many instances in which the courts, in cases of simple negligence merely, because there was no physical injury, but where the circumstances showed great mental agony, have denied relief, they have universally allowed mental suffering to be considered as an element of damages in all cases where there is the slightest physical injury accompanied by circumstances showing mental distress. Warren v. Boston R. R. Co., 163 Mass. 484, 40 N.E. 895; 8 A. & E. Ency. of Law, p. 666. (Birmingham Water Works Co. v. Martini, 2 Ala.App. 652, 657-58, 56 So. 830 (1911).)

However this Court has recently explored anew the general requirement that physical injury be present in any recovery for mental anguish in American Road Insurance Company v. Inmon, Ala., 394 So.2d 361 (1980):

Traditionally, damages for mental anguish alone have not been recoverable in this jurisdiction. Western Union Telegraph Co. v. Jackson, 163 Ala. 9, 50 So. 316 (1909). However, if the mental suffering has been accompanied by some physical injury, damages for mental suffering have been allowed. East Ala. Express Co. v. Dupes, 271 Ala. 504, 124 So.2d 809 (1960) (plaintiff who sustained whiplash and fracture allowed to recover for her "worry" about the future result of her injury); Macke v. Sutterer, 224 Ala. 681, 141 So. 651 (1932) (pregnant tenant who was injured from fall from steps allowed to recover from landlord damages for mental anguish (fear) because she was "caused to be in danger of a miscarriage ..."); and see Bryson v. Phelphs, 23 Ala.App. 346, 125 So. 795; cert. den., 220 Ala. 389, 125 So. 798 (1930) (physical damage to his automobile allowed the owner to recover damages for his delay, vexation, annoyance and mental anguish).

Other decisions and authorities reveal a remedial situation hypocritical in nature. For example, the passenger of a carrier is allowed to recover for the use of insulting language causing mental suffering because the courts have found an implied promise in fact to provide protection from such abuse. Seaboard Air Line Ry. Co. v. Mobley, 194 Ala. 211, 69 So. 614 (1915) (reversed on other grounds in Tomme v. Pullman Co., 207 Ala. 511, 93 So. 462 (1922)). Likewise it was an easy step to apply the theory of a contractual duty implied by law to make an innkeeper similarly liable. Dixon v. Hotel Tutwiler Operating Co., 214 Ala. 396, 108 So. 26 (1926). Debt collection cases allow recovery when there is a traditional tort, such as slander or a personal trespass, Maze v. Employees' Loan Soc., 217 Ala. 44, 114 So. 574 (1927); and a trespass quare clausum fregit is also sufficient to allow damages for "nervous excitement" when no physical violence was suffered. Engle v. Simmons, 148 Ala. 92, 41 So. 1023 (1906). These decisions feign to insist upon the presence of a tort of long standing when it is perfectly obvious that any injury from the traditional tort is slight and the damages sought for the mental disturbance constitute the primary (if not the sole) reason for having initiated the action. Consider Horne v. Patton, 291 Ala. 701, 287 So.2d 824 (1974) (unauthorized disclosure by physician of his patient's condition constituted prima facie invasion of right of privacy which would authorize damages for mental suffering, shame or humiliation); Holcombe v. Whitaker, 294 Ala. 430, 318 So.2d 289 (1975) (fraudulent misrepresentation made willfully authorized recovery for shame, humiliation, and mental anguish, adopting Morris v. MacNab, N.J. (25 N.J. 271) 135...