Melissa Bain, in her capacity as personal representative of the Estate of Christopher Heath Bain
Colbert County Northwest Alabama Health Care Authority d/b/a Helen Keller Hospital
from Colbert Circuit Court (CV-14-900077)
Bain ("Bain"), in her capacity as the personal
representative of the estate of her deceased husband,
Christopher Heath Bain ("Heath"), appeals from a
summary judgment in favor of Colbert County Northwest Alabama
Health Care Authority d/b/a Helen Keller Hospital
("HKH") on the claims asserted against HKH by Bain.
For the reasons set forth herein, we affirm.
Facts and Procedural History
who was 30 years old, began complaining of a "lump"
in his throat that would not go away. Heath went to his
general practitioner on May 23, 2012, and his doctor
recommended that he undergo an endoscopy. Between May 23 and
June 18, 2012, Heath saw several doctors in an attempt to
find out what was causing his symptoms, which included
increasing pressure near the base of his skull and fatigue.
Shortly after midnight on June 18, 2012, Bain took Heath to
the emergency room at Helen Keller Hospital ("the
hospital") after Heath's symptoms became more
severe. Heath's father had died of an aneurysm at the age
of 47, and Heath was aware that he might be at an increased
risk of having an aneurysm. Heath also had a history of
hypertension -- high blood pressure --but he had been
released by his primary-care physician from taking medication
for hypertension several months before his visit to the
was first "triaged" by nurses at the hospital.
There is no indication in Heath's medical records that
the nurses who saw Heath at the emergency room took a
comprehensive history, including a family history, from Heath
at that time. Dr. Preston Wigfall was the emergency-room
physician working at the hospital on the night Heath was
taken to the emergency room. Dr. Wigfall evaluated Heath, and
his custom was to interview a patient and obtain a medical
history when he first saw the patient; Dr. Wigfall did not
have a specific recollection of what he asked Heath or what
Heath told him about his history, but he did remember taking
a history from Heath. Dr. Wigfall did not document any
information he learned from taking Heath's history.
According to Bain, who was present in Heath's hospital
room, Heath and Dr. Wigfall discussed Heath's history of
hypertension and the fact that he had been released from
taking his blood-pressure medication. Heath also discussed
other relevant parts of his family and medical history with
Dr. Wigfall, including that his father had had an aneurysm.
complained of pain and tightness in his chest, "a very
uncomfortable level" of pain related to the lump in his
throat, back pain, and pressure behind his ears and into his
head. Dr. Wigfall ordered certain tests to be run -- an X-ray
of Heath's chest and soft tissue of the neck, a CT scan
of his head and sinuses, an EKG, and blood tests -- but he
was unable to determine from the results of those tests the
cause of Heath's symptoms. Heath was discharged
approximately six hours after his arrival with an
"unspecified" diagnosis with instructions to follow
up with his primary-care physician. Heath followed up with
his doctor as instructed and was referred to another doctor
to see if a problem with his gallbladder could be causing his
symptoms, and Heath subsequently had his gallbladder removed.
On July 8, 2012, approximately 20 days after his visit to the
emergency room at the hospital, Heath died when a
45-millimeter ascending aortic aneurysm dissected.
April 7, 2014, Bain, in her capacity as the personal
representative of Heath's estate, filed a
medical-malpractice action in the Colbert Circuit Court
against HKH and several other defendants. Bain alleged,
among other things not pertinent to this appeal, that the
emergency-department nurses at the hospital and the
emergency-department physician, Dr. Wigfall, breached the
applicable standards of care when they treated Heath on June
18, 2012, in the emergency department at the hospital; that
Dr. Wigfall, at all relevant times, was acting within the
line and scope of his duties and employment as an actual or
apparent agent or employee of HKH; and that HKH was
vicariously liable for the actions of its nurses and Dr.
February 16, 2015, HKH moved for a summary judgment on all
claims filed against it by Bain. HKH first argued that Dr.
Wigfall was an independent contractor, not an employee or
agent of HKH, and that there was no evidence to support a
contention that Dr. Wigfall was HKH's apparent agent.
Specifically, HKH argued that there was no evidence
indicating that it had done anything to hold Dr. Wigfall out
as its agent, that there was no evidence indicating that
Heath was misled into believing that Dr. Wigfall was
HKH's agent, and that there was no evidence indicating
that Heath sought treatment at the hospital based on that
presented evidence indicating that Dr. Wigfall worked at the
hospital as a contract employee for a total of eight days in
June 2012, including the night Heath was brought to the
emergency room. During the time that he worked at the
hospital, Dr. Wigfall was a member of its medical staff, and
HKH provided all the forms, supplies, equipment, and
personnel that he needed to do his job. Dr. Wigfall had a
contract with a staffing agency, Weatherby Locums, Inc.
("Weatherby"), that specialized in providing
temporary physicians to hospitals as the hospitals had need,
and Weatherby had a contract with HKH to provide physicians
to staff the hospital's emergency department. Weatherby
gave Dr. Wigfall the option to choose what shifts he would
like to cover at the different hospitals to which Weatherby
supplied physicians. HKH paid Weatherby for Dr. Wigfall's
services, and Weatherby, in turn, paid Dr. Wigfall. Dr.
Wigfall received a Form 1099 from Weatherby for tax purposes.
Dr. Wigfall had never been an employee of HKH and had never
been paid by HKH. Dr. Wigfall testified that HKH did not
control the medical decisions he made and that all care and
treatment he provided to Heath was based on his own medical
also argued that it was entitled to summary judgment on
Bain's claims against HKH regarding its nursing staff
because, it said, Bain could not produce evidence
demonstrating that the nurses' breach of the standard of
care contributed to cause Heath's death. HKH acknowledged
that Bain's nursing expert, Penne Perry, testified that
the HKH nurses who cared for Heath when he arrived at the
emergency room breached the standard of care by failing to
take a comprehensive history from Heath. However, HKH argued
that there was no causal link between the alleged breach --
the nurses' failure to take a comprehensive history from
Heath that would have included information about Heath's
father dying from an aneurysm -- and Heath's death. HKH
relied on Bain's testimony that she and Heath discussed
with Dr. Wigfall the fact that Heath's father had
suffered an aortic aneurysm; Dr. Wigfall's deposition
testimony that knowledge of Heath's father's aortic
aneurysm would have made no difference in his assessment and
evaluation of Heath; and deposition testimony from Dr.
Michael Blavias, Bain's emergency-physician expert,
indicating that the standard of care required Dr. Wigfall to
order a chest CT scan to attempt to rule out an aortic
aneurysm or dissection, regardless of whether Dr. Wigfall was
aware of Heath's family history.
filed a response and additional evidentiary materials to
support her contention that HKH was not entitled to a summary
judgment as to either the claim against the emergency-room
nurses or the claim that HKH is vicariously liable for the
negligence of Dr. Wigfall. Regarding the claim against the
emergency-room nurses, Bain argued that, if the nurses had
properly taken a detailed family history from Heath, a
reasonably prudent emergency-room physician would have known
that Heath's father had died of an aneurysm, that this
would have affected a differential diagnosis,  that the proper
tests would have been ordered and conducted, that Heath's
condition would have been discovered, that surgery would have
been performed, and that Heath would have lived. In support
of her theory of causation, Bain presented evidence
indicating that Heath was suffering from an aneurysm and an
aortic dissection when he went to the emergency room on June
18; that obtaining a family history would be important when
assessing a patient with Heath's symptoms; that, if an
emergency-room physician saw a patient with the symptoms
Heath had with knowledge of Heath's family history, the
standard of care required the emergency-room physician to
order a chest CT with contrast and angiogram; that a chest CT
or a transesophogeal echocardiogram, if ordered and completed
at any time after June 18, 2012, would have diagnosed a
thoracic aortic aneurysm and dissection; that surgery would
have been needed to treat the dissection; and that, if he had
received the proper surgery, Heath had a 90% chance of
also argued that HKH was vicariously liable for the acts of
Dr. Wigfall under a theory of agency by apparent authority.
To support her claim, Bain attached her affidavit testimony
"Just after midnight on June 18, 2012, Heath and I made
a joint decision to go to the emergency room due to the
symptoms he started having while playing a gig at Mooresville
Bar & Grill earlier that night. We knew that no
doctor's offices were open, so we were limited to
hospital emergency rooms to get Heath emergency care.
Although it was across the river from where we lived, Heath
and I selected Helen Keller Hospital because Helen Keller
Hospital had an emergency room available to the public 24/7,
and we believed it had the best reputation for caring for
patients in this area. Heath and I both felt that Helen
Keller would provide the best emergency care and treatment.
Heath and I had a strong comfort level with Helen Keller
Hospital because we had friends who worked for Helen Keller
Hospital, which increased our trust in Helen Keller Hospital
and the emergency medical services it provides. Our trust in
Helen Keller Hospital was also bolstered by acquaintances who
served as technicians or therapists at Keller, as well as by
a few doctors who serviced on-call there, as well as by
friends who had babies there.
"Heath and I did not go to Helen Keller on June 18,
2012, to see any particular doctor. After Heath was admitted
to the Emergency Department, Dr. Wigfall came into the room
and spoke to Heath and I. Dr. ... Wigfall had never treated
me or my husband before our emergency room visit at Helen
Keller Hospital that morning. I did not even know Dr. Wigfall
existed prior to that date. Neither Heath nor I knew that Dr.
Wigfall emergency room doctors [sic] working in Helen Keller
Hospital's emergency room were not employed by Helen
Keller Hospital. Nor did this issue cross our minds.
"Upon our arrival at Helen Keller Hospital and
throughout our time there, no one told us that Dr. Wigfall
was not employed by Helen Keller Hospital. The admissions
people did not tell us this. The nurses or care givers did
not tell us this. Dr. Wigfall did not tell us this. Nor did
they tell us that Dr. Wigfall was an independent contractor.
To my knowledge, we were not provided with any document
stating that Dr. Wigfall and the other ER doctors were not
employees of Helen Keller Hospital. Dr. Wigfall had a Helen
Keller badge and the medical records and forms had Helen
Keller's name on them. Because of these things and
because he gave orders that were followed by the staff, I
assumed Dr. Wigfall was employed by the Hospital. At all
times, I believed Dr. Wigfall was an emergency physician
employed by Helen Keller.
"Neither Heath nor I knew anything about the individual
characteristics and qualifications of the ER doctors at Helen
Keller Hospital before we arrived. However, we assumed that
Helen Keller Hospital would only have qualified doctors in
its ER, and we trusted that Helen Keller Hospital would make
sure that Heath got good, thorough and appropriate care. We
wanted Heath to be treated at Helen Keller Hospital because
we thought Helen Keller Hospital was a full service hospital,
that it had a full service emergency room, and that it would
be in complete control of Heath's care. We chose Helen
Keller because of its reputation and standing in the
community for providing good emergency services. Heath and I
went to the Emergency Department at Helen Keller on June 18,
2012, only to seek a diagnosis of and treatment for
Heath's symptoms and complaints. I relied on Helen Keller
to provide good, thorough and proper emergency medical care
and treatment of Heath, and I trusted them to do that."
also presented evidence indicating that Dr. Wigfall was the
only emergency-room physician on duty when Heath was taken to
the emergency room at the hospital, that the emergency room
operated under HKH's name and that there was no
indication -- via signage in the hospital or badges worn by
emergency-room physicians -- that HKH's emergency-room
physicians were independent contractors. Bain also produced
Heath's medical records from HKH, including forms that
Bain or Heath signed when Heath was checking into and out of
the hospital, that had only HKH's name at the top and no
suggestion that Dr. Wigfall was not an HKH employee. For
example, one document, signed by Bain, states: "I
consent to the use and disclosure of protected health
information about me by [HKH] and subsidiaries, its employees
and agents, including its medical staff for purposes of
treatment, payment, [and] health care operations ...."
As noted above, Dr. Wigfall testified that while he was at
the hospital he was a member of its medical staff. Heath
signed a form that included his discharge instructions, which
stated "Thank you for choosing Helen Keller Hospital for
your care today" and listed Dr. Wigfall's name in
the "care provided by" field.
Bain argued that HKH was vicariously liable for Dr.
Wigfall's actions because HKH had a nondelegable duty to
provide emergency medical care that fell within the
applicable standard of care. She argued that this duty arose
from administrative regulations issued by the Alabama State
Board of Health ("the Board") and through an
express or implied contract between HKH and Heath.
filed a motion to strike parts of Bain's affidavit on the
ground that she purported to testify as to facts that were
not within her personal knowledge, such as statements
regarding what Heath purportedly knew or did not know and
what he purportedly thought or felt. Following a hearing on
the motion to strike and the motion for a summary judgment,
the trial court entered an order that stated: "[A]s to
those matters relating to Melissa Bain's belief regarding
what her husband, Heath Bain, knew or did not know, or what
he thought or felt, [HKH]'s motion to strike is
granted." On March 23, 2016, the trial court granted
HKH's motion for a summary judgment on all claims pending
against it and certified the judgment as final pursuant to
Rule 54(b), Ala. R. Civ. P. Bain timely filed a notice of
Standard of Review
"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. South Trust
Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.
1989); Ala. Code 1975, § 12-21-12. '[S]ubstantial
evidence is evidence of such weight and quality that
fair-minded persons in the exercise of impartial judgment can
reasonably infer the existence of the fact sought to be
proved.' West v. Founders Life Assur. Co. of
Fla., 547 So.2d 870, 871 (Ala. 1989)."
Dow v. Alabama Democratic Party, 897 So.2d 1035,
1038-39 (Ala. 2004).
The Emergency-room Nurses
Bain argues that the trial court erred in granting HKH's
motion for a summary judgment as it pertained to the nurses
who treated Heath in the hospital's emergency room on
"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
"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.')."
Kraselsky v. Calderwood, 166 So.3d 115, 118-19 (Ala.
argues that the failure of the emergency-room nurses to
obtain Heath's family history was a breach of the
standard of care and that that breach probably caused or
contributed to Heath's death because, as a result of the
nurses' failure to obtain Heath's family history, Dr.
Wigfall was unaware of Heath's family history, which
affected his differential diagnosis, which affected the types
of tests that he ordered, which led to the failure to
discover Heath's aneurysm, so that Heath did not receive
life-saving surgery and subsequently died. In other words, if
the nurses had obtained the family history, Bain
contends, Dr. Wigfall would have been aware that Heath's
father suffered from an aneurysm, which would have affected
his differential diagnosis, which would had led a reasonable
emergency-room physician to order a CT scan of Heath's
chest, which would have revealed the aneurysm, which would
have led to surgery, and Heath would have lived. Given that
argument, Bain contends that a jury should determine whether
the nurses' failure to obtain a family history from Heath
was a proximate cause of Heath's death. In response, HKH
argues that there was undisputed evidence that, despite the
nurses' failure to obtain Heath's family history, Dr.
Wigfall was aware of Heath's family history, particularly
the fact that his father had had an aneurysm, and that this
undisputed evidence is a fatal defect in Bain's argument.
appeal, Bain does not argue that, even if Dr. Wigfall did
have actual knowledge of Heath's family history, such
knowledge would not affect her theory of causation. Instead,
she argues that whether Dr. Wigfall was actually told of
Heath's history was a question of fact for the jury. She
contends that her deposition testimony "was less than
certain" that she or Heath had told Dr. Wigfall about
Heath's family history and that, to the extent that she
specifically testified that Dr. Wigfall was told about
Heath's family medical history, a "jury will likely
believe that [she] was mistaken" in light of the fact
that Dr. Wigfall did not document any family history in
Heath's chart. Bain's brief, at 21. In her
deposition, Bain testified as follows:
"Q. Okay. Tell me what you remember then about seeing
Dr. Wigfall that night.
"A. Okay. I remember he came in and he asked the
question, so what's going on tonight, why are you in
here. So [Heath] proceeded to tell him I'm hurting, I
have this lump in my throat, I have this pressure behind my
ears, it's kind of like up in my neck, my chest is
hurting, it's tight. I just -- I just hurt. I really am
"Q. Okay. And did -- did Dr. Wigfall say anything in
response at that point in time?
"A. I think they discussed -- I know at some point they
discussed history of hypertension and Heath had said, you
know, I've been on -- because I don't know if his
blood pressure was high that night or if it was fine, but
Heath had been on blood pressure medicine for years. ... And
Dr. McCoy eventually took him off of blood pressure medicine
and cleared him and said looks good to me, what you're
doing is working, keep it up. So I know that was discussed in
the visit with Dr. Wigfall about, you know, his history of
hypertension, that he'd been taken off his medicine
recently -- or not recently, but several months prior and his
blood pressure had been maintaining at a steady and healthy
level. ... And then I know that Dr. Wigfall ordered a chest
x-ray and a CT of Heath's sinuses to see if the pain in
his -- I guess the lump in his throat and if the pain in his
ears could be sinus-related. ...
"Q. Okay. All right. So he comes in, has that
"A. I mean I -- I'm 99 percent sure -- 98 percent
sure that we discussed history, too, because that would have
come up in the hypertension discussion I know because
that's part of Heath's history. And at that point now
we're all kind of getting a little worried because this
is not something that's normal. So I know we discussed,
just in general history, you've been on medication, my
father has a history of aneurysm, or I forget if it came up
my father died of one, or if we -- I don't remember
exactly how it came up, but I know we discussed family
history and medical history. I know that was part of this
"Q. Okay. With Dr. Wigfall?
"Q. Okay. So is it your testimony that y'all would
have discussed the family history that his father had of
having an aneurysm?
"Q. Is that a 'yes?'
"A. I'm going to say 'yes.'
"Q. And all that would have taken place in the first
"A. I don't know if it was the first conversation or
not, but it was that night sometime.
"Q. Okay. I take it there were nurses that were in and
out of the room checking on him?
"Q. Did y'all ever provide a history to any of the
nurses that there had been a family history of an aneurysm?
"A. I don't know. I know it came up. I know I had
that discussion that night. I don't remember exactly who
all I had it with. I know I had it."
testified that she "knew" that Heath's family
history was discussed with Dr. Wigfall, although she was
unclear at what point that discussion occurred or with whom
else Heath might have discussed his family history.
Additionally, Dr. Wigfall testified that he remembered taking
a history from Heath, although he could not specifically
recall what he asked or what Heath told him. None of the
evidence produced by Bain in response to HKH's motion for
a summary judgment created a question of fact as to whether
Dr. Wigfall obtained a family medical history from Heath,
including that Heath's father had had an aneurysm.
light of this undisputed testimony, Bain's theory of
causation fails. Under Bain's theory of causation, the
emergency-room nurses' failure to obtain Heath's
family history matters only if Dr. Wigfall otherwise failed
to receive Heath's family history. Bain does not argue
otherwise. Given that there was undisputed evidence that Dr.
Wigfall received from Heath the information the nurses
allegedly should have obtained from Heath, Bain failed to
present substantial evidence demonstrating that the
nurses' failure to obtain Heath's family history
probably caused or contributed to Heath's death.
Accordingly, the summary judgment in favor of HKH in regard
to Bain's claims against the emergency-room nurses is due
to be affirmed.
Bain argues that the trial court erred in entering a summary
judgment in favor of HKH on her claim that HKH was
vicariously liable for the negligence of Dr. Wigfall.
the doctrine of respondeat superior a principal is
vicariously liable for the torts of its agent if the tortious
acts are committed within the line and scope of the
agent's employment." Martin v. Goodies
Distribution, 695 So.2d 1175, 1177 (Ala. 1997). On the
other hand, "a party is ordinarily not liable for the
tortious act of his independent contractor."
Id. "The test for determining whether a person
is an agent or employee of another, rather than an
independent contractor with that other person, is whether
that other person has reserved the right of control over the
means and method by which the person's work will be
performed ...." Id. In the present case, HKH
made a prima facie showing that Dr. Wigfall was an
independent contractor, not an agent or employee of HKH,
because HKH did not reserve a right to control the means or
the method of Dr. Wigfall's work in the hospital.
Accordingly, the burden shifted to Bain, the party asserting
the existence of an agency relationship, to present
substantial evidence of the existence of a genuine issue of
material fact regarding the alleged agency.
conceded that there was no evidence indicating that Dr.
Wigfall was as an actual agent of HKH, but she argued that
Dr. Wigfall could be found to be the agent of HKH on a theory
of apparent agency, which, in Alabama, is also known as
agency by estoppel. "The test for determining whether an
agency existed by 'estoppel' or by 'apparent
authority' is based upon the potential principal's
holding the potential agent out to third parties as having
the authority to act." Malmberg v. American
Honda Motor Co., 644 So.2d 888, 891 (Ala. 1994).
"Agency is generally a question of fact to be determined
by the trier of fact, " and, "[w]hen a
defendant's liability is to be based on agency, agency
may not be presumed ...." Id. at 890. Alabama
law on the doctrine of agency by estoppel, or apparent
authority, was summarized in Malmberg as follows:
"'While some suggestion has been made that a
distinction exists between apparent authority and authority
grounded on estoppel, ... our cases and authority generally
base the two upon the same elements.
"'"'As between the principal and third
persons, mutual rights and liabilities are governed by the
apparent scope of the agent's authority which the
principal has held out the agent as possessing, or which he
has permitted the agent to represent that he possesses and
which the principal is estopped to deny.'
"'"Such apparent authority is the real
authority so far as affects the rights of a third party
without knowledge or ...