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Kraselsky v. Calderwood

Supreme Court of Alabama

October 17, 2014

Steven Alan Kraselsky, personal representative of the estate of Marcia Kraselsky, deceased
David Calderwood, M.D., and Huntsville Clinic, Inc

Appeal from Madison Circuit Court. (CV-12-900795).

For Appellant: Stephen D. Heninger, Heninger Garrison & Davis, LLC, Birmingham.

For Appellee: Michael A. Florie, Sybil V. Newton, Joseph S. Miller, Starnes Davis Florie LLP, Birmingham.

STUART, Justice. Moore, C.J., and Parker, Shaw, and Wise, JJ., concur.


Page 116

STUART, Justice.

Steven Alan Kraselsky (" Steven" ), personal representative of the estate of his deceased mother Marcia Kraselsky (" Marcia" ), sued David Calderwood, M.D., and Dr. Calderwood's employer, Huntsville Clinic, Inc., in the Madison Circuit Court, alleging that Dr. Calderwood committed medical malpractice while treating Marcia following her admittance to Huntsville Hospital in July 2010 and that his alleged act of malpractice caused her already poor health to decline further and ultimately led to her death. The trial court entered a summary judgment in favor of Dr. Calderwood and Huntsville Clinic, and Steven appeals that judgment. We affirm.


On July 1, 2010, Marcia, who was 80 years old at the time, fell and sustained a compression fracture to the T12 vertebra in her spine. She was admitted to Huntsville Hospital and, following some initial treatment, was thereafter discharged and sent to the local HealthSouth Rehabilitation Hospital for further treatment and therapy. However, sometime after being admitted to HealthSouth, she went into full cardiopulmonary arrest and had to be resuscitated. On July 12, 2010, Marcia was readmitted to Huntsville Hospital with extensive pulmonary emboli in both lungs, as well as excess fluid in the chest cavity and multiple rib fractures as a result of the resuscitation efforts. She was later determined to have gastrointestinal bleeding and congestive heart failure as well.

At Huntsville Hospital, Marcia was treated by Dr. Calderwood, who had been her primary-care physician since 2006 and who had seen her approximately 27 times before this hospitalization, and by Dr. Misbahuddin Siddiqui, a pulmonary and critical-care specialist. Over the course of the next week, Marcia experienced pain in her lungs, ribs, back, and shoulder; however, her breathing did improve to some extent,

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although pain still made deep breathing difficult and she still experienced some shortness of breath. On July 19, 2010, Marcia was experiencing pain that was sufficiently severe that, Dr. Calderwood subsequently testified in a deposition, " she was begging for something for pain." Since being admitted on July 12, Marcia had been taking Norco, a pain medication that is a combination of hydrocodone and acetaminophen, orally and had been receiving morphine intravenously as well; however, Dr. Calderwood had discontinued the Norco on July 15, 2010, because Marcia was having difficulty swallowing.

During her previous consultations with Dr. Calderwood, and upon being admitted to Huntsville Hospital, Marcia had indicated that she was allergic to over 20 medications, including pain medications such as Darvon and Darvocet (propoxyphene), Motrin (ibuprofen), codeine, Dilaudid (hydromorphone), Vicodin (hydrocodone and acetaminophen), morphine, and Demerol (pethidine). Marcia in fact had been given a red arm band to wear while at Huntsville Hospital to alert hospital personnel that she had multiple allergies. However, in spite of her claimed allergies, Marcia had been given both morphine and Norco -- which contains the same active ingredients as Vicodin -- throughout her July 2010 hospitalizations without any apparent allergic reactions.

Accordingly, after visiting with Marcia on the morning of July 19, Dr. Calderwood ordered that she be given 6.25 milligrams of Demerol intravenously every six hours.[1] When a nurse subsequently reviewed the order, she recognized that Demerol was a listed allergen on Marcia's chart, and she accordingly contacted Dr. Calderwood to remind him of that fact and to verify his orders. Dr. Calderwood did in fact confirm the order, and hospital records associated with the order indicate that " M.D. is aware of allergy." The nurse administered Demerol to Marcia at approximately 5:20 p.m.

Prior to receiving the Demerol, Marcia's vital signs had been taken at 3:30 p.m. and were relatively normal -- a respiration rate of 20, pulse rate of 85, and oxygen-saturation rate of 96%. When her vital signs were taken again at approximately 8:00 p.m., her respiration rate had increased to 44, her pulse rate was up to 118, and her oxygen-saturation rate was only 86%. She was accordingly moved to the intensive-care unit, where she subsequently went into cardiopulmonary arrest and was resuscitated after her family rescinded a previous do-not-resuscitate order. The family later agreed to reinstate the do-not-resuscitate order, and Marcia died on July 22, 2010.

On June 15, 2012, Steven initiated a medical-malpractice action against Huntsville Hospital, Dr. Calderwood, and Huntsville Clinic, alleging that they had breached " the standard of care in causing or allowing [Demerol] to be given to [Marcia] in light of her condition and her sensitivity to this medication." Steven thereafter voluntarily dismissed his claim against Huntsville Hospital, and, following a period of discovery, Dr. Calderwood and Huntsville

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Clinic moved for a summary judgment in their favor, arguing that Steven had not identified substantial evidence indicating that Dr. Calderwood either breached the applicable standard of care or that any such breach proximately caused Marcia's death. Steven opposed the motion, and, on April 30, 2014, after conducting a hearing, the trial court granted Dr. Calderwood and Huntsville Clinic's motion and entered a summary judgment in their favor. On May 16, 2014, Steven filed his notice of appeal to this Court.


We review a summary judgment pursuant to the following standard:

" This Court's review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala. 2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala. 2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala. 1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce 'substantial evidence' as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala. 1989); Ala. Code 1975, § 12-21-12."

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala. 2004).


To prevail in a medical-malpractice action under the Alabama Medical Liability Act (" AMLA" ), § 6-5-480 et seq. and § 6-5-541 et seq., Ala. Code 1975, a plaintiff must establish 1) the appropriate standard of care, 2) that the defendant health-care provider breached that standard of care, and 3) a proximate causal connection between the health-care provider's alleged breach and the identified injury. Morgan v. Publix Super Markets, Inc., 138 So.3d 982, 986 (Ala. 2013). Thus, to survive a defendant health-care provider's summary-judgment motion alleging the absence of substantial evidence that would establish any one of these three items, the plaintiff must submit -- or identify in the existing record -- substantial evidence that would in fact establish the challenged item or items. In the instant case, Dr. Calderwood and Huntsville Clinic alleged in their summary-judgment motion that there was not substantial evidence indicating (1) that Dr. Calderwood had breached the applicable standard of care or (2) that any such breach proximately caused Marcia's death. After reviewing the evidence submitted by Steven and the record as a whole, we agree that there is a lack of substantial evidence indicating that the alleged breach of the standard of care committed by Dr. Calderwood -- ordering Demerol to be administered to Marcia, who had listed it as a medication she was allergic to -- proximately caused her health to decline and, ultimately, her death.[2]

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With regard to proximate causation in an AMLA case, this Court has stated that " the plaintiff must prove, through expert medical testimony, that the alleged negligence probably caused, rather than only possibly caused, the plaintiff's injury." University of Alabama Health Servs. Found. v. Bush, 638 So.2d 794, 802 (Ala. 1994) (emphasis added). See also Bradford v. McGee, 534 So.2d 1076, 1079 (Ala. 1988) (" [T]he plaintiff [in a medical-malpractice action] must adduce some evidence indicating that the alleged negligence (the breach of the appropriate standard of care) probably caused the injury. A mere possibility is insufficient." ). In this case, Steven has not retained his own expert to testify regarding causation; rather, he argues that the deposition testimony of Dr. Siddiqui is sufficient to establish that Dr. Calderwood's order that Marcia be administered Demerol proximately caused the decline in her health leading to her death. When questioned by Steven's attorney during his deposition, Dr. Siddiqui testified as follows:

" Q. Do you see a correlation between the timing of the Demerol and [Marcia's] breathing problem or her cardiopulmonary arrest?
" A. Usually you would expect it to be much sooner because it was a quick onset drug and it was given [in an] IV. You usually do not see it that late.
" Q. So you don't think there was any relationship?
" A. Usually we see it much earlier. I'm not sure that it -- I cannot say for certain that it did not, 100%, had no impact on her breathing whatsoever. But it's just too late of a reaction. Usually with IV administration we ...

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