Welch v. Houston County Hosp. Bd.

• Decision Date: 02 January 1987
• Citation: 502 So.2d 340
• Parties: James WELCH, Administrator Of The Estate Of Shirley Welch, Deceased v. HOUSTON COUNTY HOSPITAL BOARD. 85-677.
• Court: Alabama Supreme Court

Page 340

502 So.2d 340

James WELCH, Administrator Of The Estate Of Shirley Welch, Deceased v. HOUSTON COUNTY HOSPITAL BOARD.

85-677.

Supreme Court of Alabama.

Jan. 2, 1987.

Cada M. Carter of Carter & Hall, Dothan, and P. Russell Tarver, Birmingham, for appellant.

Michael K. Wright of Norman, Fitzpatrick, Wood, Wright & Williams, Birmingham, for appellee.

BEATTY, Justice.

This is an appeal by James Welch, as administrator of the estate of Shirley Welch, deceased, from a summary judgment entered in favor of the defendant, Houston County Hospital Board, in Mr. Welch's action for the wrongful death of Mrs. Welch. We reverse and remand.

When she died, Mrs. Welch was a patient at the Southeast Alabama Medical Center, which is owned and operated by the defendant, Houston County Hospital Board ("Hospital Board"). She had been diagnosed as having developed cervical cancer. Mrs. Welch was admitted to the hospital on July 29, 1979, and, on July 30, Dr. Rufus Clyde Smith, Jr., performed an abdominal hysterectomy on her. She appeared to be having a normal recovery until the morning of July 31, 1979, when she suffered a grand mal seizure. After this seizure, Mrs. Welch was generally stabilized, although no central nervous system function was ever detected. Mrs. Welch died on August 3, 1979. An autopsy revealed hypoxic changes in the brain.

Thereafter, the plaintiff, in his capacity as administrator, filed this action for wrongful death. Named as defendants were the Hospital Board, three drug manufacturers, and other fictitiously named defendants. All defendants were subsequently dismissed except the Hospital Board.

In his complaint, the plaintiff alleged that the Hospital Board "was negligent in its care and treatment of plaintiff's decedent in that it failed to exercise that degree of reasonable care, skill, and diligence as used by hospitals generally in the community." In response to the Hospital Board's motion for a more definite statement, plaintiff alleged the following:

"1. On July 29, 1979, plaintiff's decedent, Shirley Welch, was admitted to defendant hospital for an elective total abdominal hysterectomy.

"2. After the performance of the hysterectomy and appendectomy on July 30, 1979, plaintiff's decedent on July 31, 1979, suffered from 'an episode manifested by complaint of severe headache, apnea and grand mal type seizure' after the administration of certain drugs and after treatment by defendant hospital's agents and employees during plaintiff's decedent's postoperative recovery period.

"3. Defendant hospital, by and through its agents and employees, negligently failed to administer proper drugs to plaintiff's decedent or administered the wrong drugs, negligently failed to monitor the condition of plaintiff's decedent during the postoperative recovery period and negligently failed to treat plaintiff's decedent when the episode referred to in paragraph 2 occurred.

"4. As a proximate consequence of the negligence of defendant, plaintiff's decedent died."

Following the exchange of certain discovery requests, the Hospital Board filed its motion for summary judgment, alleging "that there is no genuine issue as to any material fact, and this Defendant is entitled to judgment as a matter of law." This motion was based on the pleadings and the Hospital Board's answers to interrogatories propounded by the plaintiff and two of the drug manufacturers. In responding to the allegations of the plaintiff's complaint against it, the Hospital Board argued in its motion that it had "answered interrogatories identifying each drug administered, the physician prescribing the same, the quantity administered pursuant to physician's order, and the hospital personnel involved in such administration," and argued further that "[i]t is undisputed that all medications administered were administered in the appropriate amounts or quantity, pursuant to the physician's order."

In opposition to the Hospital Board's motion for summary judgment, the plaintiff filed the affidavit of Bertie Enfinger, the mother of plaintiff's decedent Shirley Welch. That affidavit stated, in pertinent part:

"My daughter's name was Shirley Jo Enfinger Welch. On the day of her death at Southeast Alabama Medical Center, I was staying with her. My daughter was doing fine and having no problems other than some pain from the incision from the hysterectomy she had just had. She asked me to get the nurses to give her something for the pain from the incision. So one of the nurses came in and gave Shirley a shot. It was not over five to ten minutes later that my daughter grabbed her neck and head and said, 'Mama, get help, my neck and head is killing me.' Two or three minutes later my daughter lost consciousness. She was doing fine until the shot was given to her. It is my belief that she was given the wrong medication. I believe this from my heart, based on the situation as I saw it happen that day. When I called the nurse and she came in, her first words were, 'Oh, my God.' "

Apparently, at the hearing on the motion, the plaintiff also offered the deposition of Dr. Rufus Clyde Smith, one of Mrs. Welch's attending physicians, in opposition to the motion for summary judgment. The trial judge entered an order granting the Hospital Board's motion, wherein he stated:

"After consideration of the motion, arguments and brief of counsel, answers to interrogatories and the deposition testimony of Dr. Rufus Clyde Smith, Jr., the Court is of the opinion that the motion is well taken and due to be granted."

This appeal followed. We hold that summary judgment was improper in this case. None of the evidence material to the issues in this case, offered either in support of or in opposition to the summary judgment motion, would be admissible at trial and, therefore, that evidence cannot properly be considered on a motion for summary judgment.

While Rule 56, A.R.Civ.P., permits evidence in the form of depositions and answers to interrogatories to be submitted in support of, or in opposition to, a summary judgment motion (see Vulcan Freight Lines v. South Carolina Ins. Co., 446 So.2d 603, 604-05 (Ala.1982)), that evidence must, nevertheless, conform to the requirements of Rule 56(e) and be admissible at trial. Griffin v. Little, 451 So.2d 284, 286 (Ala.1984); Day v. Merchants National Bank of Mobile, 431 So.2d 1254 (Ala.1983); Whatley v. Cardinal Pest Control, 388 So.2d 529, 532 (Ala.1980). That is, the content of the deposition or answers to the interrogatories must be asserted on the personal knowledge of the deponent or person giving the answers, must set forth facts that would be admissible in evidence, and must show affirmatively that the deponent or person giving the answers is competent to testify to the matters asserted. Vulcan Freight Lines v. South Carolina Ins. Co., supra; Morris v. Morris, 366 So.2d 676, 678 (Ala.1978); Wright, Miller & Kane, 10A Federal Practice & Procedure § 2722, pp. 48-52 (1983). These requirements are mandatory. Arrington v. Working Woman's Home, 368 So.2d 851, 854 (Ala.1979); Oliver v. Brock, 342 So.2d 1, 4-5 (Ala.1976). Matters stated based only upon information and belief are essentially hearsay and are, therefore, insufficient. Vulcan Freight Lines v. South Carolina Ins. Co., supra; Oliver v. Brock, supra.

Furthermore,

"The general rule in Alabama is that in medical malpractice cases expert medical testimony is required to establish what is and what is not proper medical treatment and procedure. An exception to this general rule exists where an understanding of the [medical care provider's] alleged lack of due care or skill requires only common knowledge or experience."

Powell v. Mullins, 479 So.2d 1119, 1120 (Ala.1985). Thus, although Mrs. Enfinger's affidavit can be considered as evidence of what happened on the morning of Mrs. Welch's seizure (because she witnessed the events), the Hospital Board is correct in its argument that Mrs. Enfinger's statement, "[I believe] she was given the wrong medication," is inadmissible as evidence of that alleged fact. There is nothing in the record to show that Mrs. Enfinger possessed the qualifications or expertise to allow her to draw this conclusion from what she observed. Nor is there any other evidence to show that Mrs. Enfinger had specific knowledge that the medication administered to Mrs. Welch minutes before her seizure was the wrong medication.

Notwithstanding Mrs. Enfinger's affidavit, the substantive issue in this case remains whether the Hospital Board, as the moving party, met its burden of proving that no genuine issue of material fact exists with respect to whether it properly administered to Shirley Welch only those drugs prescribed by her physicians. The Hospital Board contends it met this burden, relying on pertinent portions of Dr. Smith's deposition and the Hospital Board's answers to interrogatories which were given and signed by its "Administrator." Without question, the matters material to this case, asserted in the answers and deposition, are based almost exclusively on the medical chart and hospital records of the plaintiff's decedent, Mrs. Welch. Neither these medical records nor sworn or certified copies thereof were ever made a part of this record. In Oliver v. Brock, supra, at 4-5, this Court held as follows:

"Mrs. Oliver contends in her affidavit that she has reviewed the chart prepared by the defendant physicians stating the names of the doctors who treated her daughter. She says she has read on the 'discharge summary' that Dr. Brock was consulted and assisted in prescribing the treatment of her daughter. However, that document is not made a part of the record. ARCP 56(e) requires that sworn or certified copies of all papers or parts thereof referred to in [answers to interrogatories or depositions] (in support of or in opposition to a motion for summary judgment) shall be attached thereto or served therewith.

" '... This means that if written documents...