The Supreme Court of Alabama (“Alabama Supreme Court”) narrowly affirmed Summary Judgment Granted to the defendant hospital by the trial court in an Alabama Medical Malpractice wrongful death case, in its opinion filed on December 1, 2017. The Alabama Supreme Court found dispositive the testimony of the physician responsible for the 84-year-old patient’s care in the defendant hospital during the relevant period of time (i.e., the surgeon who was on standby) that the nurses’ failure to call him during the night made no difference in how he treated the patient (the plaintiff’s experts testified that the nurses should have telephoned the physician regarding the patient’s condition during the night).

The Underlying Facts

The plaintiff’s elderly wife was transported by ambulance to the defendant hospital’s emergency room on March 26, 2009 at 11:50 a.m., where she was found to be vomiting blood and she complained of headaches and abdominal pain. The patient had a past medical history that included a bleeding ulcer. She was taking numerous medications, including anticoagulants.

The initial diagnosis was an acute upper gastrointestinal bleed. She was admitted to the defendant hospital’s ICU at 2:30 p.m. with the diagnoses of an upper gastrointestinal bleed, migraine, respiratory failure, and hypotension. At about 6:50 p.m., her attending physician noted that she would need a transfusion and IV proton pump inhibitors, and “[a]dditional diagnostic interventions to appropriate clinical condition.” The surgeon on standby was contacted by the hospital’s staff about the patient’s condition at around 9:40 p.m., who ordered further blood transfusion.

From 9:40 p.m. on March 26 to the morning of March 27, the patient’s blood volume dropped, she had decreased urine output, her skin was pale and cool, she had tachycardia, her blood pressure dropped, and she was confused. The patient lost almost seven units of blood, and three units were replaced. She also received saline and platelets.

On March 27 at 8:30 a.m., the surgeon on standby examined the patient and recommended that another physician scope her urgently to determine the source of the bleeding. An endoscopy was performed on the patient at 11:27 a.m. during which a bleeding lesion was found, cauterized, injected with a constricting agent, and a clip was applied. Later that day, the patient developed respiratory failure that required that she be intubated. She subsequently suffered a full cardiac arrest and was pronounced dead at 8:07 p.m. on March 27, 2009.

The Plaintiff’s Medical Malpractice Claim

The plaintiff’s expert testified that additional treatments were available and could have been given to the patient before the endoscopy was performed had the nurses telephoned the surgeon on standby. The standby surgeon testified that he was fully aware of the condition that was causing the patient’s internal bleeding and that the records of the patient’s condition on the night in question showed no change that required the nurses to call him. The standby surgeon further testified that when he saw the patient the next morning, he reviewed her chart and spoke with the nurses about her condition and how she had progressed over the night: he did not change his previous order and he did not, at that time, order the additional treatments the plaintiff’s expert said were available. The physician testified that if the nurses had called him that night, he would not have changed the order he had given previously that evening.

The Alabama Supreme Court’s concurring opinion (there is no majority opinion) stated that the defendant hospital produced substantial evidence indicating that the nurses’ failure to call the doctor made no difference in this case, and therefore summary judgment granted to the defendant hospital was appropriate. The dissenting opinion stated that it would be a jury question as whether the standby surgeon’s self-serving testimony is the product of bias (the summary judgment granted by the trial court in effect treated his testimony as to the hypothetical question of what he would have done had he been notified as dispositive of the issue whether the failure to notify made a difference): self-serving statements of an interested party that refer to matters exclusively within that party’s knowledge create an issue of credibility that should not be decided by the court but should be left for the trier of fact.

The dissenting opinion noted that Illinois courts have held that where expert testimony establishes both a duty to notify and the availability of treatment that would have been successful had notice been given, the treating physician’s statement that he would not have done anything had he been notified creates a genuine question of fact for the jury. In the present case, there is a disagreement between two experts as to the care that should have been provided to the patient, which is exactly the genuine issue of material fact that is reserved for a jury. The standby surgeon’s assertion that he would not have changed his course of treatment even if he had been told that the patient’s condition was worsening does not conclusively establish that the nurses’ care and treatment of the patient during the overnight hours in no way caused or contributed to her death.

Source Coleman v. Anniston HMA, LLC, d/b/a Stringfellow Memorial Hospital, 1151212.

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