Tuck v. HEALTH CARE AUTHORITY OF HUNTSVILLE

• Decision Date: 27 November 2002
• Citation: 851 So.2d 498
• Parties: Charles TUCK, as personal representative of the estate of Virginia Aleene Tuck v. HEALTH CARE AUTHORITY OF the CITY OF HUNTSVILLE d/b/a Huntsville Hospital.
• Court: Alabama Supreme Court

851 So.2d 498

Charles TUCK, as personal representative of the estate of Virginia Aleene Tuck v. HEALTH CARE AUTHORITY OF the CITY OF HUNTSVILLE d/b/a Huntsville Hospital.

1011100.

Supreme Court of Alabama.

November 27, 2002.

Jay E. Emerson, Jr., and Robert D. Lee of Higgs & Emerson, Huntsville, for appellant.

Daniel F. Beasley and Jeffrey T. Kelly of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellee. LYONS, Justice.

Charles Tuck, as personal representative of the estate of Virginia Aleene Tuck, appeals from a judgment as a matter of law for Health Care Authority of the City of Huntsville d/b/a Huntsville Hospital ("the Hospital"). We affirm.

Facts and Procedural History

On December 16, 1999, Virginia Tuck was admitted to the Hospital for treatment of respiratory problems and "confusion." Nurses Connie Cowan and Paul Mizelle cared for Virginia Tuck during her stay. Mizelle testified that he was the admitting nurse for Virginia Tuck on December 16. Mizelle determined that Virginia Tuck was at risk for a fall, and he initiated a fall-management protocol. This protocol called for safety measures, such as explaining the call bell to Virginia Tuck, raising the rails on her bed, and placing the bed in its lowest position.

Cowan testified that on December 17, 1999, she cared for Virginia Tuck for the first time. She placed the call bell within Virginia Tuck's reach and told her to call for help if she needed anything. Shortly after this conversation, Cowan found Virginia Tuck out of bed despite the fact that the bed rails were still in the raised position. When Cowan found her, Virginia Tuck was hallucinating and she believed that people were in her room. Cowan said that she tried to reorient Virginia Tuck to reality and told her not to get out of bed. Cowan then turned on the "bed-check alarm," which alerts the nursing staff if a patient gets out of the bed. Around two hours later, Cowan again found Virginia Tuck out of the bed, and she was hallucinating. The bed rails were still raised and the bed-check alarm remained activated. Cowan attempted to reorient Virginia Tuck and to divert her from getting up again. Approximately one and a half hours later, Cowan found Virginia Tuck out of bed. Cowan initiated a restraint protocol.

Cowan, who is trained in the use of patient restraints, testified that she ordered that Virginia Tuck be placed in a belt restraint to prevent her from getting out of bed and possibly injuring herself. A belt restraint is positioned around a patient's midsection and is less restrictive than wrist or ankle restraints. If the belt restraint moves below the hips or above the chest, it should be reapplied to the area around the midsection. Virginia Tuck did not leave her bed for the rest of Cowan's shift.

Virginia Tuck's family testified that throughout their visits on December 16, 17, and 18, Virginia Tuck suffered from hallucinations and she was agitated and fearful. Virginia Tuck's son, Charles, testified that on December 18 he noticed a cloth strap above Virginia Tuck's breast. Charles Tuck testified that he had not discussed the use of restraints on his mother with any of the nursing staff.

Mizelle came back on duty and cared for Virginia Tuck at the end of Cowan's shift on December 18, 1999. Mizelle continued the restraint protocol because Virginia Tuck was cognitively impaired and at risk for injury. Mizelle, like Cowan, had been trained in the selection and use of patient restraints. Mizelle testified that if a patient moved the belt restraint above the breast and below the arms, he would reposition the restraint to the mid-section, but that it would still be effective if located above the breast line. Mizelle testified that a belt restraint would be "inappropriate" if it were located around a patient's neck.

Mizelle testified that he checked Virginia Tuck every two hours, in accordance with hospital policy, and that during those checks he made sure the belt restraint was in the proper location. Around 5:30 p.m. on December 18, 1999, Mizelle found Virginia Tuck sitting on the floor at the foot of her bed; her leg was folded underneath her. Virginia Tuck told Mizelle that she thought the room was on fire, and she apparently had worked her way out of the restraint and had gotten out of the bed and fallen. Mizelle then added wrist and ankle restraints to Virginia Tuck. The on-call doctor examined Virginia Tuck and determined that she had broken her hip in the fall.

On April 10, 2000, Virginia Tuck sued the Hospital for medical malpractice. Subsequently, Virginia Tuck died from unrelated causes, and her son, Charles Tuck, was substituted as the plaintiff in his capacity as the personal representative of Virginia Tuck's estate. On February 2, 2001, the Hospital filed a motion for a summary judgment. Charles Tuck opposed the motion; his evidence in opposition included an affidavit of his expert witness, Cecilia Cantrell, a former nurse and an administrator at a school of nursing. The Hospital filed a motion to strike the affidavit, and the trial court denied both the Hospital's motion for a summary judgment and its motion to strike Cantrell's affidavit.

On October 29, 2001, a jury trial began. On October 31, 2001, the Hospital filed a motion to exclude the testimony of Charles Tuck's expert witness, Cantrell, on the grounds that she did not qualify as a similarly situated health-care provider as required by § 6-5-548, Ala.Code 1975, a part of the Alabama Medical Liability Act ("AMLA"). The trial court granted the motion. After this ruling, Tuck's attorney sought to call Phillip Buchmann, a Hospital employee who provides training in the use of patient restraints, to testify as an expert on the standard of care in applying restraints. Tuck had deposed Buchmann and had submitted his testimony at the summary-judgment stage and had introduced at trial, before the Hospital filed its motion to exclude Cantrell's testimony, a training video featuring Buchmann. The trial court did not allow Tuck to use Buchmann as an expert because Tuck had not disclosed Buchmann as an expert witness in accordance with Rule 26(b)(4), Ala. R. Civ. P., in response to the Hospital's interrogatories. Tuck moved for a mistrial, and the trial court denied the motion. At the close of Tuck's case, the trial court granted the Hospital's preverdict motion for judgment as a matter of law ("JML") and entered a judgment in favor of the Hospital. Tuck filed a motion for a new trial; the trial court denied the motion, and Tuck appealed.

Standard of Review

The standard of review applicable to a JML is the same standard the trial court used in initially deciding the motion. If there was substantial evidence, when viewed in the light most favorable to the plaintiff, to warrant a jury determination then a JML is not proper. City of Birmingham v. Sutherland, 834 So.2d 755 (Ala.2002).

In determining whether the trial court properly precluded a designated expert from testifying under § 6-5-548, we apply the abuse-of-discretion standard of review. See, e.g., Husby v. South Alabama Nursing Home, Inc., 712 So.2d 750 (Ala.1998); Rodgers v. Adams, 657 So.2d 838 (Ala.1995). The abuse-of-discretion standard of review is also applied when evaluating whether the trial court properly precluded an expert from testifying because the expert was not designated in the party's answers to interrogatories as required by Rule 26, Ala. R. Civ. P. See Coca-Cola Bottling Co. United, Inc. v. Stripling, 622 So.2d 882 (Ala.1993).

Analysis

Tuck first argues that the trial court's judgment should be reversed because the trial court erred in not granting Tuck's motion for a mistrial. Tuck filed the motion for a mistrial after the trial court had granted the Hospital's motion to disqualify Cantrell as an expert witness and had refused to allow Buchmann to testify as an expert witness. Tuck contends that Cantrell's disqualification was unjust and prejudicial. Tuck points to the trial court's denial of the Hospital's motion for a summary judgment and of its motion to strike Cantrell's affidavit as the basis for what he says was "manifest prejudice" against Tuck created by Cantrell's subsequent disqualification. In response to the Hospital's summary-judgment motion, Tuck submitted Cantrell's affidavit and curriculum vitae. The curriculum vitae showed that Cantrell has a bachelor of science degree in nursing, a master of science degree in medical-surgical nursing, and a doctor of philosophy degree in medical sociology, social psychology theory development, and psychology. The curriculum vitae also stated, among other things, that she was a professor of sociology and nursing at Georgia State University. The Hospital moved to strike Cantrell's affidavit on the grounds that she was not a similarly situated health-care provider under § 6-5-548. Section 6-5-548(b) defines "similarly situated health-care provider" as a person who:

"(1) Is licensed by the appropriate regulatory board or agency of this or some other state.

"(2) Is trained and experienced in the same discipline or school of practice.

"(3) Has practiced in the same discipline or school of practice during the year preceding the date that the alleged breach of the standard of care occurred."

The trial court denied the Hospital's motion to strike. When Cantrell testified at trial, she testified that she was not similarly situated to Cowan and Mizelle and that she had not been a staff nurse at a hospital in the year preceding Virginia Tuck's accident in December 1999. The Hospital moved to disqualify Cantrell under § 6-5-548(b), and the trial court granted the motion. Tuck argues that Cantrell should have been deemed qualified to testify as an expert. Tuck points to Rodgers v. Adams, supra, which states:

"The [AMLA] does not require that the defendant health care provider and the expert witness have identical training, experience, or types of practice, or even the same specialities. To

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