Zaden v. Elkus

Decision Date12 September 2003
Citation881 So.2d 993
PartiesHelen ZADEN v. Richard ELKUS.
CourtAlabama 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.

HARWOOD, Justice.

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.

I. Procedural History and Facts

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:

"Q: ... [W]hat part, if any, [would the transected or missing portion of Zaden's sciatic nerve] play in the symptomatology that you found and the complaints that you took from Ms. Helen Zaden at the time you did the history and physical?
"Mr. Bates: Excuse me, Doctor. I need to object to the form of the question. It's an improper hypothetical, but —
"Q: You may answer, sir.
"A: I don't like hypothetical questions.
"....
"Q: Okay. Then tell us whether or not the symptomatology you found and recorded in the history and physical would be consistent with that much of a sciatic nerve being transected out or missing when surgery was performed a few months later.
"Mr. Bates: Object to the form. Improper hypothetical.
"A: I don't know.
"....
"Q: Would the fact that there was no response [that] could be elicited from the left sural [4] sensory nerve be consistent with the section of Ms. Zaden's sciatic nerve that was missing when her second surgery was performed a couple — several months after the hip replacement was done by Dr. Elkus?
"Mr. Bates: Object to the form. Improper hypothetical.
"A: It could be a bruise or any damage. It doesn't mean that it was resected or anything like that.
"....
"Q: I'm asking you, assume that when Dr. Sanders did the surgery, he found this missing and he marked it in this Plaintiff's Exhibit 2. Assume that to be true. Would that bring about, quote, `no response elicited from the left sural sensory nerve,' as reported to you by Dr. O'Neal?
"Mr. Bates: Object to the form. Improper hypothetical.
"A: Not necessarily. And I think you'd best ask Dr. O'Neal.
"....
"Q: [Dr. O'Neal] might be able to give me a better answer. But based upon your education, training and experience in your profession, give us your answer. If you cut that much of the nerve out up at the hip joint, you're going to have severe neuropathies in everything distal to where it's cut out aren't you, Doctor?
"Mr. Bates: Object to the form.
"A: It's not my specialty. I don't know.
"Q: You spent a year in post-graduate work in neurology; is that true sir? [5]
"A: Yes.
"Q: And why do you not know that if you cut out a big hunk of the sciatic nerve that it will not cause neuropathies distal to that in two segments that branch off of that sciatic nerve, the peroneal and the tibial?
"A: Like I told you, I think it would, but you'd —
"Q: You think it would?
"A: — do best to ask Dr. O'Neal.
"Q: Is that your professional opinion that it would? We'll get to Dr. O' Neal. I've got a very good doctor here in front of me right now. Is that your professional opinion that it would?
"Mr. Bates: I object to the form.
"A: All I can say is, I think it would. But I yield to Dr. O'Neal."

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:

"Q: Do you know Richard Elkus?
"A: I do.
"Q: Do you know whether or not your liability insurance is the same as the company that represents Mr. Elkus?
"Mr. Cooper: Don't answer that question, Doctor.
"Q: Did you hire the gentleman here-the lawyer here, that's representing you today?
"Mr. Cooper: Don't answer that question, Doctor.
"Q: Are you the person that's going to pay the lawyer that's with you here today, Doctor?
"Mr. Cooper: Don't answer that question, Doctor.
"....
"Q: Do you know who your insurance is with?
"Mr. Cooper: Don't answer that question, Doctor.
"Q: How did you come to meet the gentleman, the lawyer here, that's representing you here today?
"Mr. Cooper: Don't answer that question, Doctor.
"Q: Have you had any conversation with anybody about this case other than the gentleman who's seated here representing you that's making the objections?
"A: Can you ask that question again?
"Q: Who have you talked to about this case besides the gentleman here who says he's your lawyer?
"A: Nobody.
"Q: When did you first talk about this case with the gentleman here who's representing you here today?
"Mr. Cooper: Don't answer that question, Doctor."

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:

"Rule 502, Alabama Rules of Evidence, provides that a client has a
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