University of Alabama Health Services Foundation, P.C. v. Bush By and Through Bush

• Decision Date: 11 February 1994
• Citation: 638 So.2d 794
• Parties: The UNIVERSITY OF ALABAMA HEALTH SERVICES FOUNDATION, P.C. v. Faith Reagan BUSH, a minor, By and Through her father and next friend, William R. BUSH. 1921452.
• Court: Alabama Supreme Court

Page 794

638 So.2d 794

51 A.L.R.5th 815

The UNIVERSITY OF ALABAMA HEALTH SERVICES FOUNDATION, P.C. v. Faith Reagan BUSH, a minor, By and Through her father and next friend, William R. BUSH.

1921452.

Supreme Court of Alabama.

Feb. 11, 1994.

Rehearing Denied April 8, 1994.

Robert D. Norman and Thomas A. Kendrick of Norman, Fitzpatrick, Wood, Parker & Kendrick, Birmingham, for appellant.

Stephen D. Heninger of Heninger, Burge & Vargo, Birmingham, and Carl Wade Robinson and Carl R. Robinson, Bessemer, for appellee.

HORNSBY, Chief Justice.

This is a medical malpractice case. Because the complaint was filed before June 11, 1987, the Alabama Medical Liability Act of 1987, Ala.Code 1975, § 6-5-540 et seq., is not applicable to this action. Section 6-5-552. Thus, the "similarly situated health care providers" standard mandated by § 6-5-548 does not apply. Further, the law of this case includes the "scintilla" rule of evidence, because the Act's "substantial evidence" standard provided for in § 6-5-549 is also inapplicable.

On February 2, 1987, Faith Reagan Bush ("Reagan"), through her father, William Bush, brought claims alleging medical malpractice against The Children's Hospital of Alabama ("Children's Hospital"), The University of Alabama Health Services Foundation, P.C. ("the Foundation"), Dr. Rutherford Polhill, Dr. David Reynolds, and Dr. Mark Didea, relating to the diagnosis and treatment of the Hemophilus influenza meningitis she contracted in April 1982. The claims against Drs. Polhill and Reynolds were dismissed, and the jury found in favor of Children's Hospital and Dr. Didea. However, the jury returned a verdict against the Foundation in the amount of $1,500,000. The Foundation appeals from a judgment based on that verdict.

I. Facts

Reagan was born on January 31, 1979, with severe birth defects relating to the formation of her brain and spinal canal. These abnormalities included spina bifida with myelomeningocele, a defect in the lumbar portion of the spinal canal causing her spinal cord to protrude through the skin of her lower back and causing her to be paralyzed from the waist down; Arnold-Chiari malformation, a condition wherein the medulla portion of her brain protruded down into her upper spinal canal; and hydrocephalus, a condition in which excessive cerebrospinal fluid collects in the brain because of poor circulation and absorption of that fluid and which causes abnormal pressure to be placed on her brain tissue.

Shortly after Reagan's birth, a special tube called a "shunt" was placed into her brain to help control her hydrocephalus by draining excessive cerebrospinal fluid into her peritoneal cavity. As she has grown older, Reagan has undergone multiple neurosurgical procedures for revision of her shunt, which has malfunctioned several times and caused severe fluid compression of her brain. In November 1981, approximately six months before her episode of meningitis, Reagan scored a 99 on an IQ test, indicating that at that time she possessed an average intelligence.

A. Dr. Didea's Treatment

At approximately 2:00 a.m. on April 24, 1982, Reagan's parents took her to the emergency room at the Children's Hospital, located in Birmingham. She was suffering from fever, diarrhea, and vomiting. Reagan was seen by one of her pediatricians, Dr. Polhill, who admitted her to the hospital and put her on intravenous fluids. Later that day she was also seen by Dr. Didea, a second-year resident at the University of Alabama School of Medicine, and Dr. Reynolds, her other pediatrician. Reagan's condition improved, and on the morning of April 25, after Dr. Didea had observed her and discussed her condition with Dr. Reynolds, her doctors decided that she could be dismissed.

However, before Reagan's discharge, her mother noticed that she was favoring her neck, and her mother asked if Reagan could be examined for meningitis. Dr. Didea observed Reagan's condition, checked her neck, and concluded that she showed no sign of meningitis. However, Dr. Didea failed to record the extent and thoroughness of this examination in Reagan's medical records. Reagan was discharged from Children's Hospital at 10:50 a.m., April 25, with orders to return to see her pediatrician, if she needed to.

Reagan's parents took her home, but that afternoon her temperature increased and they returned to the emergency room of Children's Hospital. The emergency room doctors determined that Reagan might have a shunt malfunction, and she was sent to the emergency room at the University of Alabama at Birmingham ("UAB") Hospital for neurological evaluation. Reagan came into the UAB Hospital emergency room at 4:50 p.m. on April 25 and was seen by Dr. Zeiger, the neurosurgeon on call, and Dr. Kendrick, a third-year neurosurgical resident.

Because Dr. Zeiger's treatment of Reagan is the focus of this appeal, we have examined it in great detail. The order in which the facts are set forth below accurately represents the chronology of events in Dr. Zeiger's treatment of Reagan, although these facts do not necessarily appear in the record in the same order.

B. Dr. Zeiger's Treatment

1. Upon Reagan's arrival at the UAB Hospital emergency room at 4:50 p.m. on April 25, Dr. Zeiger noted that Reagan had been released from Children's Hospital earlier that day, after suffering from fever, vomiting, and diarrhea. She presented to the UAB emergency room with a rigid neck and a low fever.

2. Dr. Zeiger's initial admitting diagnosis for Reagan was meningitis, and he ordered that she be treated with the antibiotic Mefoxin; however, the hospital staff did not administer it at that time. Dr. Zeiger was also concerned that Reagan's shunt might be malfunctioning; a shunt malfunction is a common problem for children with shunts.

3. A tap of Reagan's shunt yielded cerebrospinal fluid, indicating that fluid was moving through the shunt and that the shunt was functioning properly.

4. Once a shunt malfunction was ruled out, Dr. Zeiger's next concern was the possibility of a shunt infection without a concurrent malfunction of the shunt.

5. Dr. Zeiger examined the fluid drawn from Reagan's shunt and found that the levels of protein and white blood cells were normal; the normal levels indicated that there was no infection of the cerebrospinal fluid in her brain.

6. Dr. Zeiger and Dr. Kendrick reviewed the other possible causes of Reagan's illness, which was still symptomatic of meningitis.

7. Dr. Zeiger eventually theorized that the Arnold-Chiari malformation of Reagan's brain, extending into the spinal canal, may have developed to such an extent as to create a separate compartment of spinal fluid that did not circulate completely with the other areas of her spinal canal and her brain, as would normally occur. He believed that it was possible that so much of Reagan's brain may have protruded into her upper spinal canal as to create a compartment that spinal fluid could enter through what would effectively be a one-way valve, but could not thereafter circulate through the rest of Reagan's spinal column and her brain.

8. Dr. Zeiger decided that it was necessary to do a spinal tap to obtain a sample of Reagan's cerebrospinal fluid from a point other than her shunt tube. However, a normal spinal tap was not possible, because the myelomeningocele deformation in Reagan's lower spinal column caused her to not have the fluid sack at the base of her spinal column where such taps are normally performed.

9. Before the spinal tap was done, a CAT scan of Reagan's brain was performed. The CAT scan was normal for a child with Reagan's abnormalities and revealed no any sign of infection affecting brain tissue.

10. Dr. Kendrick performed the spinal tap at 10:30 p.m. on April 25. Examination of the spinal fluid sampled by Dr. Kendrick's spinal tap showed that Reagan did have an infection in an area of cerebrospinal fluid that was not in circulation with the cerebrospinal fluid being drawn from her brain by the shunt.

11. Based on his knowledge that 96% of all shunt-related meningitis infections are caused by Staphylococcus bacteria, Dr. Zeiger ordered that Reagan be admitted and treated with the antibiotic Mefoxin. Dr. Zeiger continued with his diagnosis that the meningitis infection was related to Reagan's shunt, even though the spinal fluid drawn from the shunt itself was not infected. Dr. Zeiger chose not to put Reagan on the antibiotic ampicillin.

12. The antibiotic Mefoxin was not actually administered to Reagan until 3:00 a.m. on April 26, more than 4 hours after her spinal tap and 10 hours after she had been come into the emergency room with an initial diagnosis of meningitis. Mefoxin was again administered to Reagan at 6:00 a.m.

13. Laboratory testing of Reagan's infected spinal fluid later revealed that it was infected by Hemophilus influenza, the most common cause of meningitis in young children, and not Staphylococcus bacteria as Dr. Zeiger had assumed. Because of the laboratory results, the medication for Reagan's meningitis was changed from Mefoxin to a combination of ampicillin and chloramphenicol, antibiotics that are more specific for Hemophilus influenza meningitis and that are the standard treatment for that particular illness.

14. Reagan was transferred to Children's Hospital after 9:00 a.m. on the morning of April 26, and she finally underwent treatment with ampicillin and chloramphenicol, more than 16 hours after she was first seen by Dr. Zeiger at the UAB Hospital emergency room with symptoms of meningitis.

15. Reagan's condition deteriorated greatly and she was near death before she recovered and was able to be discharged. She remained in Children's Hospital until May 15, 1982.

C. Reagan's Condition Following Hemophilus Influenza Meningitis

During Reagan's hospitalization for meningitis, she nearly died; she suffered temporary blindness and hearing loss, although her sight and hearing returned shortly after her discharge. She also began to...