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Ex parte Anderson

Supreme Court of Alabama

September 30, 2014

Ex parte Robert E. Anderson, M.D., and Selma Doctors Clinic, PC, d/b/a Selma Doctors Clinic;
Robert E. Anderson, M.D., and Selma Doctors Clinic, PC, d/b/a Selma Doctors Clinic) (In re: Barbara G. Craig, as administrator of the Estate of William James Craig, deceased

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(Dallas Circuit Court, CV-09-900107). Trial Judge: Collins Pettaway, Jr.

For Petitioners: John Peter Crook McCall of Starnes Davis Florie LLP, Mobile; and Michael K. Wright and Sybil V. Newton of Starnes Florie LLP, Birmingham.

For Respondent: Ronald O. Gaiser, Jr., and John C. Johnston of Gaiser & Johnston, Birmingham; Prince Darius Chestnut of Chestnut Law, Selma; and William M. Pompey of Pompey & Pompey, P.C., Camden.

MURDOCK, Justice. Stuart, Shaw, Main, Wise, and Bryan, JJ., concur. Bolin and Parker, JJ., concur in the result. Moore, C.J., dissents.


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MURDOCK, Justice.

Robert E. Anderson, M.D. (" Dr. Anderson" ), and Selma Doctors Clinic, PC, d/b/a Selma Doctors Clinic (" SDC" ),[1] petition this Court for a writ of mandamus directing the Dallas Circuit Court to vacate its order of May 27, 2013, granting plaintiff Barbara Craig's Rule 60(b), Ala. R. Civ. P., motion, and to reinstate the final judgment entered in favor of Dr. Anderson and SDC on October 24, 2012. We grant the petition and issue the writ.

I. Facts and Procedural History

This petition concerns a medical-malpractice/wrongful-death action filed by Barbara G. Craig (" Mrs. Craig" ) as the administrator of the estate of her husband William James Craig (" Mr. Craig" ). On January 29, 2009, Dr. Anderson performed a left inguinal hernia repair on Mr. Craig (" the hernia surgery" ) at Vaughan Regional Medical Center (" VRMC" ). On February 9, 2009, Mr. Craig was admitted to the intensive-care unit of VRMC suffering from extreme pain in his abdominal region.

On February 10, 2009, Dr. Anderson ordered a CT scan for Mr. Craig. Radiologist Dr. Robert Simpson interpreted the CT scan and concluded that it showed that Mr. Craig had a perforated duodenal ulcer.[2] According to medical records, Dr. Anderson performed surgery on Mr. Craig on February 10, 2009, to close the perforated ulcer (" the ulcer surgery" ). Dr. Anderson's operation report[3] of the procedure provided the following relevant notations:

" Under satisfactory general anesthesia the patient was propped and draped in sterile fashion. Upper midline incision was made and carried down through the skin and subcutaneous tissue. There was a lot of thin brownish material within the stomach which was removed with the suction. The duodenum was inspected and a large duodenal perforation could be seen. Several stitches were placed across the perforation in order to close it and then a portion of omentum was tacked down around and over the perforation to seal as a patch. The wound was then irrigated with copious amounts of saline. The abdomen was closed with a running suture of 10 Vicryl, the fascia with inter

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rupted sutures of #0 Vicryl, the subcutaneous tissue with #4-0 Vicryl, and the skin with staples.... I should mention that there were a lot of peritoneal changes around the duodenum precluding any formal procedure other than simply patching the duodenal perforation ...."

Thus, according to the operation report, Dr. Anderson used " Vicryl" sutures to close the abdomen, but the report did not detail the type of sutures he used to close the duodenal perforation or to patch the area with the omentum. It is undisputed that Vicryl sutures are absorbable and dissolvable in the body.

On February 13, 2009, Mr. Craig died while he was still a patient at VRMC.

On February 14, 2009, Mrs. Craig hired Dr. Boris Datnow, a semiretired pathologist, to perform a private autopsy on Mr. Craig to determine the cause of his death. Dr. Datnow determined the cause of death to be " acute purulent peritonitis and purulent ascites following an elective inguinal hernia repair." In layman's terms, Dr. Datnow concluded that Mr. Craig died of an infection he contracted after the hernia surgery. In his autopsy report, dated February 14, 2009, Dr. Datnow noted that he observed the healed surgical incision from the hernia surgery. He also noted that " [t]here is an upper abdominal central vertical surgical incision with staples 5.5 inches in length." The latter notation is consistent with a second surgery having been performed on Mr. Craig; however, Dr. Datnow expressly noted in the report that " [a]n ulcer cannot be found."

In his deposition taken on May 31, 2011, Dr. Datnow explained that when he performed the autopsy on February 14, 2009, he did not have Mr. Craig's medical records, and he therefore was not aware of the reason for the second surgery. Subsequently, Mr. Craig's medical records were forwarded to Dr. Datnow and he gleaned from them that the purpose of the second surgery was to repair a perforated duodenal ulcer. Because he had not located an ulcer in the autopsy of February 14, 2009 (" the first autopsy" ), Mrs. Craig's counsel asked Dr. Datnow in May 2009 to perform a second autopsy, paying particular attention to the region where the ulcer would be located (" the second autopsy" ). Dr. Datnow performed the second autopsy solely on the gastrointestinal tract in order to see if he could find the ulcer and evidence of the repair.[4] In an undated addendum to his first autopsy report, Dr. Datnow stated that " [t]he operative site in and around the duodenum is soft and friable and a dissection[] in this area is difficult with the tissue breaking apart and crumbling. The operative site thus cannot be studied and described." In his deposition, Dr. Datnow confirmed that " [w]hen I went back to look at it, I did not actually see an ulcer, but the tissue at this stage was kind of friable and a bit distorted. So I could not verify the absence thereof or the presence [of an ulcer]."

Dr. Datnow also stated in his deposition that during both autopsies he found no trace of sutures in the area where the ulcer surgery occurred. He explained that if silk sutures were used, they would have been present in the body for " many, many years" but that other types of sutures could have dissolved in the few days between the ulcer surgery and the first autopsy. Dr. Datnow further stated that during the second autopsy the condition of the tissue was such that he could not rule in or out whether Mr. Craig had an ulcer and whether there had been an ulcer repair.[5]

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Specifically, Dr. Datnow testified that the tissue was so friable that the sutures could have become obscured, but " I certainly had no evidence of a suture I could pick and say, ah ... this is a suture." In both his report and his deposition testimony, Dr. Datnow stated that his findings pertaining to the presence or lack of an ulcer did not change his conclusion as to the cause of Mr. Craig's death.

On July 10, 2009, Mrs. Craig sued Dr. Anderson, SDC, and VRMC in the Dallas Circuit Court, alleging that the defendants were negligent in their care and treatment of Mr. Craig and that their conduct proximately caused his death. Specifically with regard to Dr. Anderson, the complaint alleged that he negligently/wantonly " nipped" Mr. Craig's colon while performing the hernia surgery; that he failed to timely diagnose and seriously treat Mr. Craig's intra-abdominal condition; that he failed at various times to perform full examinations of Mr. Craig, which led to a failure to discover the severity of Mr. Craig's condition; that he failed to admit Mr. Craig to the hospital in a timely fashion so that he could receive proper care; and that, " [o]n the night of the operation to repair the duodenal ulcer (02/10/2009), Dr. Anderson negligently or wantonly failed to broaden Mr. Craig's antibiotic coverage in light of a grossly contaminated abdominal cavity and worsening infection .... This failure directly contributed to Mr. Craig's ongoing sepsis and ultimate death." The last claim constituted the only claim in the original complaint mentioning the ulcer surgery.

On November 15, 2010, Mrs. Craig filed her first amended complaint. The amended complaint contained more detailed allegations against the defendants, but the claims still centered on the defendants' failures in diagnosis, care, and treatment of Mr. Craig's intra-abdominal infection. The amended complaint did not make a claim against Dr. Anderson for failure to repair the duodenal ulcer. Instead, it faulted him for allegedly failing to perform a " thorough examination of the entire abdominal cavity" during that surgery. In this regard, the amended complaint stated:

" It is incumbent upon the operating surgeon to explore the entire abdomen to rule out other pathology as well as diminish the amount of contamination. There is no evidence that Dr. Anderson made any effort to significantly lower the infection burden through debridement of the contamination present within the abdomen. And, most egregious is the fact that the 13 cm fluid collection seen in the cul-de-sac on CT, and noted by the radiologist to be pathologic was not addressed. There is absolutely no justification not to explore this area and drain this collection that more likely than not arose from the alleged perforated ulcer and was infected. By not draining that collection, Dr. Anderson performed an incomplete exploration that left an undrained collection within Mr. Craig's abdomen. This failure to perform a complete operation was a breach of the standard of care and this breach contributed to the worsening of the emergent condition (sepsis) of Mr. Craig and probably and proximately caused his subsequent wrongful death."

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The defendants answered Mrs. Craig's complaints, and discovery commenced. In the course of discovery, VRMC provided Mrs. Craig with a hospital bill for the ulcer surgery that reflected the use of three different types of sutures in that surgery. Mrs. Craig's standard-of-care expert, Dr. Carlton Young, was deposed on April 8, 2011. In his deposition, Dr. Young criticized Dr. Anderson for a delay in the diagnosis and treatment of a perforated ulcer with an intra-abdominal infection. Dr. Young did not state or imply that the ulcer surgery did not occur, nor did he criticize Dr. Anderson's actions during the ulcer surgery. Dr. Young confirmed that the CT scan of February 10, 2009, showed that Mr. Craig had a perforated ulcer.

Dr. Anderson was deposed on August 31, 2010. Concerning the ulcer surgery, Dr. Anderson testified in his deposition as follows in response to questions posed by Mrs. Craig's counsel:

" Q. What changes in Mr. Craig's care did you institute after seeing the CT results?
" A. We needed to patch his ulcer or fix his ulcer and irrigate his abdomen.
" Q. So you performed another operation; correct?
" A. Correct.
" ....
" Q. What did the CT show?
" ....
" A. It showed a perforated ulcer.
" Q. All right. And is that what was causing the fluid in the cul-de-sac to accumulate?
" A. (Witness nods head.)
" Q. And so at about 19:33, you performed a surgery on Mr. Craig. What did you do?
" A. I opened his abdomen, removed fluid, found his perforated ulcer and patched it, put a couple of stitches across it and patched it with omentum. Then I irrigated with copious amounts of saline his right upper quadrant, his left upper quadrant, above his liver, below his liver, both lower quadrants, his cul-de-sac. All the fluid was removed from his abdomen. ...
" ....
" Q. Did you close the wound?
" A. Yes."

Dr. Anderson was not asked in the deposition what kind of sutures he used during the surgery.

On November 10, 2011, VRMC filed a motion for a summary judgment.[6] In the hearing on that motion, on May 17, 2012, Mrs. Craig's counsel argued as follows concerning the ulcer surgery:

" Mr. Gaiser [counsel for Mrs. Craig]: Yes sir. To begin with, the man died of an infection. He didn't die of anything else. That's what he died of. He died of sepsis. There was an autopsy done by a pathologist, Mayo [Clinic] trained, board-certified pathologist. He testified -- he testified on two trips through that autopsy that there was no surgery for a peptic ulcer. Furthermore, if there was a surgery for a peptic ulcer, he would have been so infected at the time that it would have spread the infection. But there was no evidence of a -- we are not doctors. We don't have the capacity to -- when I read that and saw no peptic ulcer in it from the autopsy after the client came in, we got the client right shortly after the death. So we were there fairly quickly. So I asked him to go ahead. I contacted him, asked him, I don't see anything here. He [Dr.

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Datnow] says, well, I am going to make another look.
" ....
" Mr. Gaiser: The pathologist, he made another look. There were no sutures. You take fat, and you make a patch, and you sew it up. And there is no evidence that there was a hole or that there was a peptic ulcer. ... And by the way, the only evidence that exists at all about a peptic ulcer was from the anesthesiologist. Anesthesiologists are just --they are doing their job independent of everyone else. It wasn't until after he [Mr. Craig] died on the [13th] that a tape recording thing that you make that they don't have any longer -- there is no evidence now. It was dictated by somebody. They wrote it out, and the report comes in and says that he took care of a peptic ulcer."

(Emphasis added.)

The trial of the case against Dr. Anderson and SDC was scheduled to begin on October 15, 2012, before Judge Thomas R. Jones. On October 8, 2012, Dr. Anderson and SDC filed a motion in limine in which they requested that the trial court preclude from trial, among other things,

" d) any argument or inference that Dr. Anderson did not perform a duodenal ulcer repair on the evening of February 10, 2009. While each medical witness, whether for the Plaintiff or Defendant, has conceded that such an operation was performed, counsel for the Plaintiff, Mr. Ron Gaiser, has, at times, and during oral argument, suggested that Dr. Anderson did not perform a surgical repair of the decedent's duodenal ulcer on the evening in question. Regardless, no such claim is pled, no medical witnesses proffered this opinion, and any such suggestion is without basis in fact."

The trial court heard arguments on the motion in limine on October 15, 2012, before the trial began. During the argument, the following exchange occurred:

" Mr. McCall [counsel for Dr. Anderson and SDC]: Now Your Honor focusing on (d) [of the motion in limine], the only time I've ever heard this and we heard it again a couple of minutes ago from Mr. Gaiser. And it's an argument or inference that there was no duodenal ulcer repair performed in this case. Dr. Anderson obviously performed a duodenal ulcer repair. [The ulcer] was diagnosed.
" The Court: What does Datnow's report say with regard to that? Did he say that he didn't find any evidence of it, or did he say in his report -- because I can't remember --he didn't find any evidence of it or it was not done? What specifically did he write in his report?
Mr. Gaiser [counsel for Mrs. Craig]: Twice. The first time [Dr. Datnow] said that there was no duodenal ulcer in his original report. But I called him up. I said, you did an autopsy, and I told him what it was. And I said would you make another pass through. ... And he went back through it again. And again he couldn't find it. There was no hole that he could find. There was no hole that he could find.
" The Court: Is that part of his report?
" Mr. McCall: Your Honor, he says it couldn't be located. The tissues were very friable. He did not say no repair was done. I don't think it provides Mr. Gaiser a platform to be allowed to argue that Dr. Anderson, the nursing personnel, et cetera, including the anesthesiologist, decided not to perform a repair on the evening in question.
" The Court: It sounds to me like it's going to be a disputed fact. And at least to the extent that his report says that he didn't find a repair, it will be up

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to you to convince this jury that it was merely not reported rather than not, that he did not perform it versus whether it was just not found.
" ....
" The Court: Well, you know, to the extent that you have two different versions and two different arguments, I am not going to prohibit the Plaintiffs from talking about what they believe to be the evidence. Is Datnow going to be here to testify?
" Mr. Gaiser: He is out of the state, but we have his deposition.
" The Court: You are going to use his deposition?
" Mr. Gaiser: Yes.
" The Court: The evidence will be what it's going to be.
" Mr. McCall: Your Honor, I would like to add just one last thing for the record's sake, that it's certainly our position -- and while they had attempted to plead certain claims in reference to what Dr. Anderson should or should not have done in reference to a particular surgery, they have never pled that he didn't perform the surgery. And they are trying to have it both ways.
" The Court: Well, you know, the evidence is what it is. The testimony is what it is. Whatever he may make in terms of an argument to this jury, if he misrepresents the evidence to this jury, I presume you are going to stand up and you are going to show Datnow's report and highlight his testimony and straighten the jury out on what your ...

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