Jerry Coleman, as administrator of the Estate of Virginia Coleman, deceased
Anniston HMA, LLC, d/b/a Stringfellow Memorial Hospital
from Calhoun Circuit Court (CV-11-900108)
Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Stuart, C.J., and Main, Bryan, and Sellers, JJ., concur.
J., concurs specially.
Parker, Murdock, and Wise, JJ., dissent.
Justice (concurring specially).
concur to affirm the trial court's judgment. I write
specially to respectfully respond to Justice Bolin's
facts of this case are thoroughly discussed in the dissent,
and I see no need to repeat them all here. For purposes of
this writing, I note that Virginia Coleman was suffering from
gastrointestinal bleeding, that she spent a night in the
intensive-care unit of Stringfellow Memorial Hospital
operated by Anniston HMA, LLC, d/b/a Stringfellow Memorial
Hospital ("the Hospital"), and that she died the
next day following surgery. The plaintiff, Jerry Coleman, the
administrator of Virginia's estate, contends that
additional treatment should have been rendered to Virginia
the night before she died and that the failure to render such
treatment caused her death. Virginia did not receive such
additional treatment, it is alleged, because the nurses
monitoring Virginia, who were employed by the Hospital,
breached the standard of care by failing to call or to alert
a doctor to Virginia's condition during that night.
Hospital produced substantial evidence indicating that the
nurses' failure to call the doctor made no difference in
this case. Specifically, Dr. Clifford Black was the physician
on standby. The nurses had contacted him at 9:40 p.m.
regarding Virginia's condition. He ordered tests and
ordered that testing recur every two hours; if Virginia's
blood levels fell below a certain value, she was to receive a
transfusion. Coleman's experts asserted that, during the
night, the nurses should have again telephoned the doctor
regarding Virginia's condition. Dr. Harry Moulis, one of
Coleman's experts, opined that additional treatments were
available and could have been given to Virginia had the
nurses telephoned the doctor. Dr. Black disagreed; he
specifically testified that he was "fully aware" of
the condition that was causing the bleeding and that the
records of Virginia's condition on the night in question
showed no change that required the nurses to call him. In
fact, when he saw Virginia 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; he did not, at that time, order the
"additional treatments" Dr.
said were available. He testified that, if the nurses had
called him that night, he would not have changed the order he
had given previously that evening: "I can state under
oath that even had the nursing staff contacted me during that
period of time, my Order would not have changed. This is made
clear by the fact that my Order did not change when I saw the
patient at 8:30 a.m." the next morning. So, Dr.
Black's testimony indicates that even if the nurses had
telephoned him, he would not have ordered the additional
treatment Coleman argues Virginia should have received. This
is undisputed in the record. This argument formed the basis
of the Hospital's second motion for a summary judgment,
which the trial court granted.
not just a situation where we have two dueling
experts--Dr. Black and Dr. Moulis--arguing over what
should have been done if the nurses had called; I
agree with the dissent that the resolution of that dispute
should be determined by the jury. But we also have
an undisputed assertion of what would have actually
happened if the nurses had telephoned him: Dr. Black
testified that he--the physician on standby who had been
treating Virginia that night--would not have ordered the
additional treatment Dr. Moulis says was required.
dissent addresses Dr. Black's testimony that he would not
have ordered additional treatment had the nurses called by
suggesting that the testimony created another issue for the
jury to resolve. Specifically, the dissent points out that
Dr. Black's testimony might be considered self-serving or
the product of bias. Under different facts, I might agree:
Years after the incident, Dr. Black might now say
that he would have done nothing different, but Dr. Moulis
suggests that a physician in Dr. Black's shoes--lest he
commit medical malpractice--would have done the opposite.
Thus, Dr. Black's credibility could be called into
question. However, two factors unique to this case--one
substantive and one procedural--cause me to disagree with the
Dr. Black saw Virginia the next morning, he ordered no
additional treatment. If, at that point, Dr. Black
ordered no additional treatment, then how can his assertion
that he would not have ordered additional treatment earlier,
when Virginia was in a lesser state of decline, lack
credibility? His actions the next morning confirm
that a telephone call by the nurses the previous night would
have resulted in no change in treatment. If Virginia's
demise was the result of not receiving additional treatment,
that failure to receive additional treatment would not
have been caused by the nurses. Further, as a matter of
procedure, we cannot reverse the summary judgment on this
ground: This specific issue concerning Dr. Black's
credibility is neither preserved for review nor argued on
appeal. In the trial court, the Hospital twice moved for
a summary judgment. The first motion was denied, and, in
support of the second motion, the Hospital produced Dr.
Black's affidavit testimony and argued that Coleman could
not prove causation. That was the sole basis of the
second motion. Coleman, in his response to the second motion,
made no argument regarding Dr. Black's affidavit other
than incorporating the previous filings and stating:
"Plaintiff submits that the Affidavit of Dr. Black does
not materially change the record or evidence before the
Court." Coleman presented no specific argument to the
trial court suggesting that Dr. Black's affidavit was not
credible or that it created an issue for the jury to decide.
Because this argument was not raised in the trial court, it
cannot form the basis of a reversal. Ex parte Ford Motor
Co., 47 So.3d 234, 241 (Ala. 2010)
("'"This Court cannot consider arguments raised
for the first time on appeal; our review is restricted to the
evidence and arguments considered by the trial
court."'" (quoting Marks v.
Tenbrunsel, 910 So.2d 1255, 1263 (Ala. 2005), quoting in
turn Andrews v. Merritt Oil Co., 612 So.2d 409, 410
(Ala. 1992))); and Totten v. Lighting & Supply,
Inc., 507 So.2d 502, 503 (Ala. 1987) ("[O]n appeal,
this Court is limited to a review of the record alone, and an
issue not reflected in the record as having been raised in
the trial court cannot be raised for the first time on
appeal."). Further, Coleman does not raise this
issue on appeal--there is no argument in Coleman's
brief claiming that Dr. Black's affidavit lacked
credibility. There is no discussion of the
affidavit, and there is no suggestion that Dr. Moulis's
testimony discounted Dr. Black's testimony and thus
created a credibility issue. When an appellant fails to
properly argue an issue, or does not argue it at all, that
issue is waived and will not be considered for purposes of
appellate review. Tucker v. Cullman-Jefferson Counties
Gas Dist., 864 So.2d 317, 319 (Ala. 2003). Additionally,
"'no matter will be considered on appeal unless
presented and argued in brief.'"
Id. (quoting Braxton v. Stewart, 539 So.2d
284, 286 (Ala. Civ. App. 1988)). It is clear to me that,
because the trial court initially denied the Hospital's
summary-judgment motion but then granted it after the
submission of Dr. Black's affidavit, Dr. Black's
testimony was a key basis for its decision. In light of the
above discussion, I concur to affirm that decision.
Coleman, as administrator of the estate of Virginia Coleman,
deceased, appeals from a summary judgment entered in favor of
Anniston HMA, LLC, d/b/a Stringfellow Memorial Hospital
("the Hospital"). For the following reasons, I
respectfully dissent from this Court's no-opinion
affirmance of the summary judgment in favor of the Hospital.
and Procedural History
March 26, 2009, at 11:50 a.m., Virginia Coleman presented to
the emergency department of Stringfellow Memorial Hospital by
ambulance. She was vomiting blood and complained of headaches
and abdominal pain. She was 84 years old and had a past
medical history that included a bleeding ulcer and three
cardiac stents. Virginia was on numerous medications,
Michael Proctor evaluated Virginia in the emergency room and
assessed Virginia as having an "Acute Upper
Gastrointestinal Bleed." At 2:30 p.m., she was admitted
to the intensive-care unit by Dr. Heather Sabo and diagnosed
with an upper gastrointestinal bleed, migraine, respiratory
failure, and hypotension. She was seen by Dr. Leigh Hemphill
at approximately 6:50 p.m., who noted her to have a
"massive GI bleed." Dr. Hemphill's notes
provide that "[t]he patient will need transfusion, IV
proton pump inhibitors. We can try some p.o. Carafate but at
the rate of this bleed, I do not think this will do much
good. We have consulted GI and Surgery. The patient has
indicated by previous decision that I am told that she is a
No Code. Additional diagnostic interventions to appropriate
was seen by Dr. Sabo again at or around 7:50 p.m. Dr.
Clifford Black, the surgeon on standby, was contacted by the
Hospital's staff about Virginia's condition at around
9:40 p.m. Dr. Black ordered further blood transfusion.
9:40 p.m. on March 26 to the morning of March 27,
Virginia's blood volume dropped. Virginia's medical
records indicate that she had decreased urine output; that
her skin was pale and cool; that she had tachycardia; that
her blood pressure dropped; and that she was confused.
Virginia lost almost seven units of blood, and three units
were replaced. Virginia also received saline and platelets.
March 27 at 8:30 a.m., Dr. Black examined Virginia. He
recommended "Dr. Shaikh scoping her urgently to
determine the source of the bleeding." An endoscopy was
performed on Virginia at 11:27 a.m. A bleeding lesion was
found. It was cauterized and injected with a constricting
agent, and a clip was applied. Later that day, Virginia
developed respiratory failure, was intubated, and ultimately
suffered a full cardiac arrest. She was pronounced dead at
8:07 p.m. on March 27, 2009.
March 24, 2011, Jerry Coleman, as administrator of
Virginia's estate, filed a wrongful-death action under
the Alabama Medical Liability Act, § 6-5-480 et seq. and
§ 6-5-540 et seq., Ala. Code 1975, in the Calhoun
Circuit Court. The action named the Hospital and Dr. Sabo as
defendants. Coleman alleged that the defendants were
negligent in failing to properly assess, monitor, treat, and
manage Virginia's care and, further, that the nursing
staff failed to alert a physician of the severity of
Virginia's condition during the night of March 26-27,
2009, and that her deteriorating condition went unreported
until Virginia was seen by a physician at 8:30 a.m. the
Sabo passed away on November 28, 2012. On September 30, 2013,
the parties filed a joint stipulation of dismissal as to Dr.
Sabo, and the trial court entered an order dismissing Dr.
Sabo with prejudice on October 2, 2013.
January 28, 2016, the Hospital filed a motion for a summary
judgment. In support of its motion, it attached the
deposition testimony of Coleman's standard-of-care
expert, Lisa Henson, a registered nurse. Henson contended
that the Hospital's nursing staff had breached the
standard of care because they failed to contact
Virginia's physicians during the night of March 26, 2009,
and early morning hours of March 27. Henson testified:
"Q. Go ahead and tell me what opinions you are prepared
to offer in this case.
"A. My opinions stem from the nursing portion of the
nurses that took care of [Virginia] from the period of time
when she got into the ICU. My opinion is that the nurses had
orders from the physicians to care for her. But from the last
physician that saw her at 19:50, which was Dr. Sabo, no
physician had laid eyes on her until the next morning. As a
nurse, having a patient bleed out the way she was bleeding,
should have been on the phone trying to express that to a
physician, a provider that she is bleeding more than what we
are putting in. She is not, you know -- I need some help, I
need a physician in here; that was not done. The orders that
they had, they did carry out, but they did not let the
physician know the extent of what [Virginia] was bleeding,
and that should have been carried through. Someone should
have notified the physician and let him know, whichever
physician was directing her care at that time, at least that
she was bleeding so much, and they didn't do that.
"Q. Is there some indication in the record to you that
the physicians were not aware of this massive GI bleed?
"A. One physician wrote that it was a massive GI bleed.
That was earlier in the day. What I'm talking about is
once she got into critical care and after Dr. Sabo saw her at
19:50, no other physician came to see her until 8:30 the next
morning. She had lost approximately one-half of her
circulating volume of blood. She was only given back three
units of blood. She lost almost seven units of blood, but she
was only given back three.
"Q. If I understand then, your criticism of nursing care
is between the time of admission at CCU [sic] -- or actually,
I would suppose, from Dr. Sabo's visit at 19:50 until
what time the following morning?
"A. Until the following morning, until the doctor had
seen her, and I think it was Dr. Black that saw her at 8:30
that morning, I could not find in the chart at any time after
21:40 -- the last physician was notified at 21:40 and that
was Dr. Black was the one that the nurse had called to get
the order for blood transfusion. He had given her an order if
it was less than 28, to transfuse one unit of blood and to
use that order for every H&H that was drawn, which the
nurse did follow his orders. But no nurse ever contacted a
physician after that to say she continues to bleed, she is
bleeding massively, I need some help, what we are giving her
is not working. No one ever contacted a physician to let them
know that what they were doing and what their orders were for
this patient was not working.
"Q. So the nurses followed orders, but the nurses just
should have been advising the physicians of the patient's
condition more closely during that period of time?
"Q. So that the physicians could, if they felt the need,
make other efforts to stabilize the patient?
"Q. So had there been any changes in her vitals during
that period of time which in and of themselves would have
required nursing to call a physician?
"A. When she was tachycardic in the 120s -- before she
had been in the 70s and 80s area, 90s sometimes. But once she
went to tachycardic, you know, close to 130, somebody should
have been calling them and saying, you know, her heart rate
is 130, her blood pressure is low. I don't think those
were relayed to anybody because most of those things were
documented on the blood volume slips and physicians don't
look at those. So they wouldn't know unless a nurse told
them, you know, I have got this going and, you know, she is
more tachycardia, her blood pressure is low. They would not
know that unless a nurse picked up the phone and called them
and told them that. We are their eyes and ears. And we are
supposed to be advocates for patients. If that were my
patient, I would be on the phone every hour letting them
know, you know, I've had this much out this hour,
I've had this much out this hour, ...