Wilson v. Manning

• Decision Date: 24 October 2003
• Citation: 880 So.2d 1101
• Parties: Sherrian Y. WILSON v. Rhoda MANNING.
• Court: Alabama Supreme Court

880 So.2d 1101

Sherrian Y. WILSON v. Rhoda MANNING.

1020432.

Supreme Court of Alabama.

October 24, 2003.

Bryan G. Duhé, Mobile, for appellant.

K. Paul Carbo, Jr., of Atchison, Crosby, Saad & Beebe, Mobile, for appellee.

HARWOOD, Justice.

Sherrian Y. Wilson sued Rhoda Manning, a registered nurse, asserting medical-malpractice claims, alleging that Manning's negligence resulted in further amputation of Wilson's leg.¹ Manning filed a motion for a summary judgment, with supporting evidentiary submissions, and Wilson filed a brief opposing the motion. The trial court granted the motion, and made the summary judgment final pursuant to Rule 54(b), Ala. R.Civ.P.²

Our review of a summary judgment is de novo.

"In reviewing the disposition of a motion for summary judgment, `we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,' Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was `entitled to a judgment as a matter of law.' Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala.R.Civ.P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is `substantial' if it is of `such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993)[overruled on other grounds, Bruce v. Cole, 854 So.2d 47 (Ala.2003) ]; Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990)."

Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997).

The record reveals that Wilson was arrested at her home on Wednesday, May 21, 1997, and was taken to the Mobile County Metro Jail for failing to appear at a hearing on a charge of negotiating a worthless instrument. Wilson was brought to the jail at 6:30 p.m., and a corrections officer noted on her "Jail Receiving Screening Form" that she had "bone cancer." At the time of her incarceration, Wilson was receiving intravenous antibiotic medication twice daily, through a Groshong shunt³ in her chest, to treat what she termed a "bone disease" in her left leg, which had been amputated below the knee. When she was admitted to the jail, she had not had her second daily dosage of the antibiotic medication.

Manning, an employee of the Mobile County Sheriff's Department, was director of nursing at the jail and was responsible for supervising two medical secretaries, five registered nurses, and seven licensed practical nurses. She testified in her deposition, filed in support of her motion for a summary judgment, that the warden ran the jail and that his immediate supervisor was the chief, who answered to the chief deputy, who answered to the sheriff. On Thursday, May 22, Wilson signed a "consent for medical care"⁴ form and filled out a "request for medical evaluation,"⁵ on which she wrote "PAIN, leg stump—need IV treatm[ent]. I have a shunt in my chest for bone disease."

That same day, in response to Wilson's request for a medical evaluation, Manning visited Wilson and filled out a "medical encounter record." Manning noted in the medical encounter record that Wilson informed her that she was a patient of Infirmary Home Health Agency, Inc., and she provided her doctor's name, Dr. Steven G. Alsip, and a telephone number for Infirmary Home Health. Manning telephoned Infirmary Home Health and spoke to Jackie Woolfolk, the nurse who administered Wilson's medications to her at Wilson's home. Manning recorded in the medical encounter record, and subsequently testified on deposition, that Woolfolk told her that Wilson was taking one gram of Cefotan, an antibiotic, intravenously twice daily, at 6:00 a.m. and 6:00 p.m., and was having the dressing changed on the Groshong shunt three times per week.⁶ She also stated in her deposition: "The assessment from this lady, Jackie, was osteomyelitis,[⁷] amputee, car accident two years ago, long-standing, chronic." During her deposition, Manning further described her telephone conversation with Woolfolk:

"Q [Wilson's counsel]: 11:00 a.m. Did Jackie call or did you call Jackie or how did that conversation take place, as best as you can recall?

"A: I called.

"Q: Okay.

"A: Because I got the nurse's name.

"Q: All right. And did she indicate to you what the situation was with this lady's osteomyelitis and care and that sort of thing?

"A: Yes, the medication.

"Q: Okay.

"A: But it was not a doctor's order.

"Q: Okay. Did—it was not a doctor's order? I'm sorry. Help me with that, now.

"A: She gave me a report—

"Q: Right.

"A:—an assessment, a history, but—and told me what the patient had been on.

"Q: Right.

"A: But didn't—you know, it was not a doctor's order. A nurse can't give another nurse or a—

"Q: Sure.

"A: Office personnel can't give a doctor's order."

In regard to her conversation with Infirmary Home Health, Manning also stated that she telephoned them "to make them aware that [Wilson was] there so they [could] continue the treatment or whatever they do...." Woolfolk testified somewhat differently, by deposition, concerning the content of that telephone conversation. She stated that she telephoned the jail "and left a message for the head nurse to call me back." Woolfolk stated that when she talked to Manning, "I introduced myself, told her that I was the one who had been primarily seeing Sherrian. I told her what medication she was getting ... how often she was getting it, and who her doctor was, and I also gave her the doctor's phone number." Woolfolk testified that there was no discussion during that conversation about Infirmary Home Health's delivering Wilson's medication and she stated that Manning did not request that Infirmary Home Health send the medicine.

Manning noted in the May 22 medical encounter record that the medical "plan" for Wilson was for Lt. Smith, who she said in her deposition was "in charge of the jail's functions" at that time, to check on Wilson's being released because of the cost of her medications. On Friday, May 23, Manning added to the May 22 medical encounter record a notation that she had also notified Lt. York of Wilson's situation, and that he was going to telephone the judge to inquire about the possibility of Wilson's release. Manning acknowledged that this "plan" was adopted because the charge Wilson had been arrested for was a minor charge, but Wilson had not made bond and the estimated cost of her medicine, Cefotan, was "two hundred and fifty dollars a day."

Also on that Friday, Joann Peavy, a nurse working at the jail, completed a "physical examination" sheet, a "health history" sheet, a "mental status assessment sheet," and a "medical encounter record" in regard to Wilson. The health history sheet noted that Manning had cancer and that she wore a prosthesis below her left knee. The medical encounter record, which Manning signed, documented Wilson's medical condition, provided her doctor's name, and stated "no distress noted." That same day, Brenda Cain, a registered nurse working at the jail, filled out another medical encounter record concerning Wilson, which Manning also signed; that medical encounter record contained the following notation:

"5:00 p.[m.] Dr. Alsip's nurse Karen called. The family called to express concern that Ms. Wilson has not had her IV Therapy Cefotan in 3 days. Dr. Alsip was not aware she was incarcerated. He also wanted to know if her charges were drug related.

"5:00 p.[m.] 1. Placed call to Rhoda Manning to determine if arrangements had been made for [Infirmary Home Health] to come in and give her IV's daily and Groshong care 3 [times] weekly. 5:30 p.[m.] 2. Placed call to Warden Gaston to determine if a release had been arranged. 7:00 p.[m.] 3. Per R.M. [Rhoda Manning] contact [Infirmary Home Health] to set up visit in a.m. 10:30 p.[m.] 4. Emily (nurse on call) [Infirmary Home Health] returned call—[Wilson] was discharged from their services due to noncompliance. .... She was never at home when nurse came—never got her medication and never got Groshong care. She would have to be a new admit—referral again from Dr. Alsip—They would then evaluate her referral—undecided if they would take her on now again due to incarceration."

(Emphasis original.)

On Wednesday, May 28, Wilson, who was still incarcerated, filled out another request for medical evaluation form; that form stated, "I have an infection of the bone that is VERY active at present. I have a shunt in my chest and I need antibiotics I.V. and pain medication." (Capitalization in original.) At 9:10 a.m., on May 28, Manning completed another medical encounter record concerning Wilson, which stated:

"Called [and] spoke to Karen, Dr. Alsip's nurse. She states Infirmary Home Health cannot abandon this [patient]. She will call me back. 9:35 a.m. Nurse Karen called, she will call back to give [patient] her infusions [schedule]. She will talk [to] Mobile Infirmary Home Health. 11:30 a.m. Karen called back. [Infirmary Home Health] refuses to come in; they will provide the meds, but not the service. Ms. Wilson has an appointment [with] Dr. Alsip on Fri[day] 5/30/97 at 10:15 a.m. 11:35 a.m. [Paged] Dr. S. Eichold,[⁸] gave him report. He's going to call Karen. Will await one of their calls for instruction. 12:40 p.m. Dr. Eichold [called.] Infirmary Home Health will supply meds, we will give it."

In regard to her conversation with Dr. S. Eichold, Manning...