Zaden v. Elkus
| Decision Date | 12 September 2003 |
| Citation | 881 So.2d 993 |
| Parties | Helen ZADEN v. Richard ELKUS. |
| Court | Alabama Supreme Court |
Frank O. Burge, Jr., and Christopher A. Keith of Burge, Wettermark, Holland & Barber, Birmingham, for appellant.
Robert P. McKenzie III, Reed R. Bates, and Catherine R. Steinwinder of Starnes & Atchison, LLP, Birmingham, for appellee.
Robert E. Cooper, Birmingham, for amicus curiae Christian & Small, L.L.P., in support of Richard Elkus.
On June 21, 1999, Helen Zaden sued Dr. Richard Elkus, an orthopedic surgeon, asserting claims of medical malpractice based on an injury she allegedly suffered during the course of a surgical procedure performed by Dr. Elkus. As finally amended, Zaden's complaint presented claims of negligent and wanton breach of the standard of care. A jury rendered a verdict in favor of Dr. Elkus and the trial court entered a judgment on that verdict. Zaden then appealed to this Court. The dispositive issues presented in this case are whether the trial court improperly refused to allow Zaden discovery from a potential witness, who later testified at trial, concerning a possible bias on the part of some of the physicians who had treated Zaden, assuming that the physicians had been provided with attorneys hired by Dr. Elkus's medical-liability insurer, and whether the ex parte interviews Dr. Elkus's attorneys conducted with certain of Zaden's treating physicians were improper.
On July 31, 1997, Zaden was admitted to St. Vincent's Hospital, where she underwent total left hip-replacement surgery; Dr. Elkus performed the surgery. Zaden asserts that immediately after the surgery she was unable to move her left leg and that she had no feeling in her left leg or her left foot.1 Dr. Elkus was of the opinion that her problem was the result of some stretching or bruising of the sciatic nerve that had apparently occurred during the operation. Dr. Elkus referred Zaden to HealthSouth Rehabilitation Hospital-Lakeshore ("HealthSouth"), where she stayed for approximately two months. While there, she was treated by various physicians, including Dr. Martin Salmon, a physical-medicine and rehabilitation specialist; Dr. David O'Neal, a neurologist; Dr. Sandra Lynn Durham, a pain-management specialist; and Dr. Richard Sanders, an orthopedic surgeon.
Dr. Salmon, as Zaden's primary treating physician at HealthSouth, concluded that her symptoms were consistent with an injury to her sciatic nerve2 and that such an injury could have resulted from bruising or stretching of the nerve during the hip-replacement operation. Dr. Salmon referred Zaden to Dr. Finley McRae, a neurosurgeon, for another opinion. Dr. McRae likewise concluded that Zaden had suffered an injury to her sciatic nerve during the hip-replacement surgery, probably as a result of stretching or bruising. Thereafter, Zaden came under the care of Dr. Sanders and was treated by him for approximately one year.
Because of continuing pain, on November 20, 1998, Dr. Sanders performed a "neurolysis in an attempt to free up the sciatic nerve from the adjacent scar tissue."3 During this surgical procedure, Dr. Sanders discovered that Zaden's left sciatic nerve was transected, or separated, and that the gap was an inch and a half to two inches, a condition that he believed was permanent. Upon learning of Dr. Sanders's discovery, Zaden sued Dr. Elkus, alleging that he had breached the medical standard of care by transecting her sciatic nerve during the hip-replacement surgery. In her principal brief to this Court, Zaden says that Dr. Elkus acknowledged responsibility for "injuring" the nerve, but claimed that he would have only bruised, damaged, or stretched it, all of which were known possible complications of the surgical procedure.
During the discovery that followed, Dr. Salmon's deposition was taken. At that deposition, Reed Bates, a lawyer from the Birmingham law firm of Starnes & Atchison, appeared on behalf of Dr. Elkus, and Frank Burge of the firm Burge & Wettermark appeared on behalf of Zaden. Also attending was Robert Cooper of the Birmingham law firm of Christian & Small; Cooper was not an attorney of record in the case, but stated that he was present to represent Dr. Salmon. Zaden states that at this deposition Dr. Salmon exhibited "evasiveness" that, she says, became "disconcerting" and "suspicious." This evasiveness was shown, she argues, by Dr. Salmon's testimony after he was shown a schematic drawing of the left hip and left thigh depicting the nerves in that area and was asked to assume that a portion of Zaden's sciatic nerve had been transected and was missing:
Three weeks later, Zaden deposed Dr. O'Neal. Cooper attended the deposition, stating that he was appearing as Dr. O'Neal's attorney. Zaden states in her brief to this Court that Cooper's appearance at Dr. O'Neal's deposition, coupled with Dr. Salmon's deference to Dr. O'Neal at Dr. Salmon's deposition, made her "suspicious" of Dr. O'Neal's testimony and of Cooper's presence. During Dr. O'Neal's deposition, the following exchange took place:
Following Dr. O'Neal's deposition, Zaden filed a notice and subpoena to take Cooper's deposition. Dr. Elkus and Cooper filed separate motions to quash the notice and subpoena. According to Zaden, after a hearing the motions were "`neither granted or denied,'" but the trial judge, instead, "orally instructed Zaden's counsel to pursue other discovery to obtain the same information." Zaden then filed a motion to compel Dr. O'Neal to answer the questions Cooper had told him not to answer, asserting that "[t]he issue before this court is whether [Zaden] is entitled to Dr. O'Neal's testimony which would clarify the role that [Cooper] has played in this litigation and whether that role has led to any witness bias, prejudice or perjury." That motion was opposed by Dr. Elkus and Cooper. After a hearing on the motion, the trial judge entered an order denying Zaden's motion to compel and stating, in part:
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