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Coleman v. Anniston HMA, LLC

Supreme Court of Alabama

December 1, 2017

Jerry Coleman, as administrator of the Estate of Virginia Coleman, deceased
Anniston HMA, LLC, d/b/a Stringfellow Memorial Hospital

         Appeal from Calhoun Circuit Court (CV-11-900108)

          PER CURIAM


         See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.

          Stuart, C.J., and Main, Bryan, and Sellers, JJ., concur.

          Shaw, J., concurs specially.

          Bolin, Parker, Murdock, and Wise, JJ., dissent.

          SHAW, Justice (concurring specially).

         I concur to affirm the trial court's judgment. I write specially to respectfully respond to Justice Bolin's dissenting opinion.

         The 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.

          The 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.

          Moulis 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.

         This is 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.

         The 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 dissent.

         When 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.[1] 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.

          BOLIN, Justice (dissenting).

         Jerry 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.

         Facts and Procedural History

         On 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, including anticoagulants.

         Dr. 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 clinical condition."

         Virginia 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.

         From 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.

         On 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.

         On 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 following morning.

         Dr. 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.

         On 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?
"A. Correct.
"Q. So that the physicians could, if they felt the need, make other efforts to stabilize the patient?
"A. Correct.
"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, ...

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