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Bain v. Colbert County Northwest Alabama Health Care Authority

Supreme Court of Alabama

February 10, 2017

Melissa Bain, in her capacity as personal representative of the Estate of Christopher Heath Bain
v.
Colbert County Northwest Alabama Health Care Authority d/b/a Helen Keller Hospital

         Appeal from Colbert Circuit Court (CV-14-900077)

          PER CURIAM.

         Melissa 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.

         I. Facts and Procedural History

         Heath, 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 emergency room.

         Heath 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.

         Heath 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.

         On 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.[1] 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. Wigfall.

         On 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 belief.

         HKH 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 judgment.

         HKH 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.

         Bain 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, [2] 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 survival.

         Bain 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 as follows:

"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."

         Bain 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.

         Finally, 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.

         HKH 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 appeal.

         II. 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).

         III. Analysis

         A. The Emergency-room Nurses

         First, 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 June 18.

"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. ...
"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. 2014).

         Bain 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. We agree.

         On 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 hurting.
"....
"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 discussion?
"A. Uh-huh.
"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 discussion.
"Q. Okay. With Dr. Wigfall?
"A. Yes.
"Q. Okay. So is it your testimony that y'all would have discussed the family history that his father had of having an aneurysm?
"A. Uh-huh.
"Q. Is that a 'yes?'
"A. I'm going to say 'yes.'
"Q. And all that would have taken place in the first conversation?
"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?
"A. Yes.
"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."

         Bain 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.

         In 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.[3]

         B. Apparent Authority

         Next, 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.

         "[U]nder 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.

         Bain 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 ...

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