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Hamilton v. Scott

Supreme Court of Alabama

March 9, 2018

Amy Langley Hamilton
v.
Warren Scott, M.D., and Isbell Medical Group, P.C.

         Appeal from DeKalb Circuit Court (CV-06-149)

          PER CURIAM

         Amy Langley Hamilton appeals from a judgment against her and in favor of Warren Scott, M.D., and the Isbell Medical Group, P.C. ("IMG"), following a jury trial in the DeKalb Circuit Court on Hamilton's claim alleging the wrongful death of her stillborn son Tristian. We reverse and remand.

         I. Facts

         This is the second time this case has come before us. In the first appeal, Hamilton v. Scott, 97 So.3d 728 (Ala. 2012) ("Hamilton I"), this Court reversed in part a summary judgment entered against Hamilton because we concluded that Hamilton was entitled to pursue a wrongful-death claim regarding her unborn son even though the child was not viable at the time of his death.[1]

         The basic facts that led to Hamilton's suit are amply described in Hamilton I. In this appeal, we provide only those facts pertinent to our judgment here.

         On January 10, 2005, Hamilton, who was pregnant, contacted IMG to explain that she had a rash on her arms and chest and that she was concerned it might be "fifth disease, " an infection caused by human parvovirus B19. Hamilton's primary physician at IMG, Dr. John Isbell, requested that Hamilton come in the following day for blood testing to see if she had the infection. After the test, IMG informed Hamilton that she had the parvovirus and that Dr. Isbell wanted her to schedule an ultrasound immediately. IMG also informed Hamilton that, after the initial ultrasound, she should have an ultrasound performed every 2 weeks for the next 10 weeks of her pregnancy.

         Hamilton was seen twice more at IMG in January, but because of various circumstances no ultrasounds were performed on those visits. According to Hamilton, she next went to IMG on February 18, 2005, and she was seen by Dr. Scott, who told her that it would be better to wait until the 18th or 19th week of pregnancy to begin monitoring with ultrasounds. Dr. Scott disputed Hamilton's testimony, stating that he did not see her on February 18.

         There is no dispute that Hamilton was seen at IMG on February 25, 2005. Tracy Talley, an ultrasound technician, performed an ultrasound on Hamilton on that date. The ultrasound showed that the baby was 18 weeks and 6 days in gestational age at that time. Hamilton testified that during the ultrasound she "became aware" of "certain abnormalities that [Talley] had seen."

         Immediately following the ultrasound, Hamilton was seen by Dr. Scott; Hamilton was accompanied by her husband William. Hamilton testified concerning the conversation between Dr. Scott and herself as follows:

"A. In the exam room we asked Dr. Scott, given the abnormalities that were found on ultrasound, we wanted a referral to a perinatologist as soon as possible. We were told at that point in the day it's too late to be seen, so we requested we would like to be seen on Monday, Monday morning first thing, as soon as we can be seen by a perinatologist. That's what we wanted.
"Q. [Hamilton's attorney:] Very specific question. Did you and William request of Dr. Scott a referral to a perinatologist based on the abnormality seen in the ultrasound?
"A. Yes.
"Q. What did he say?
"A. He said we can handle it here."

         Hamilton testified that Dr. Scott did not tell her that he could not perform a percutaneous umbilical blood sampling ("PUBS"), [2] that he was not qualified to perform a PUBS procedure, or that he was not qualified to perform an intrauterine transfusion.

         Dr. Scott testified that during his February 25, 2005, consultation with Hamilton, she asked about a referral to a perinatologist, she did not ask for a referral. He testified that if she had asked for a referral he would have given her one because it would have been a violation of the standard of care to deny such a specific request. Dr. Scott also testified that the ultrasound was performed to look for fetal hydrops, which Dr. Scott defined as follows:

"[F]etal hydrops is described or defined as having an abnormal amount of fluid accumulation in two specific areas in the fetus, and that includes what's called generalized skin edema, which just basically means fluid in, like, the abdominal cavity and, like, in the pelvis cavity, and they call pleural effusion which just means fluid around the lungs, pericardial effusion, which means fluid around the heart. You can also have what's called ... placentomegaly, that just means an enlarged placenta. And something called hydramnios or polyhydramnios which just means an excessive amount of amniotic fluid."

         Dr. Scott testified that this finding of excessive fluid must be present in two or more of the areas he listed. Dr. Scott noted that, if hydrops is present on the ultrasound, the parvovirus has infected the baby. Dr. Scott further testified that when the parvovirus infects the baby, it can affect red blood cells, which may result in anemia and, in turn, hydrops. Dr. Scott stated that, based on his review of the ultrasound photographs, the placenta was of normal size, there was a normal amount of amniotic fluid, and there was no generalized skin edema. Dr. Scott further testified that the photographs of the ultrasound from February 25, 2005, did not reflect any fluid in the abdomen (ascites), did not show any fluid around the heart, and did not show any fluid around the lungs. Dr. Scott concluded that based on those observations there was no hydrops and no need to refer Hamilton to a perinatologist that day.

         Hamilton returned to IMG on March 8, 2005, because she was feeling ill. She came back to IMG on March 10, 2005, and an ultrasound was performed that day. The ultrasound indicated that Tristian had no heartbeat and that hydrops was present. Hamilton went to the hospital the following day to have the stillborn child delivered.

         Hamilton sued Dr. Scott and IMG on April 28, 2006, alleging that they had caused Tristian's death "and that the death of her unborn son was wrongful within the meaning of the Alabama Wrongful Death Act, Ala. Code § 6-5-410 (1975)." More specifically, Hamilton alleged that Dr. Scott's breach of the standard of care prevented Tristian from receiving life-saving care in the form of a PUBS and an intrauterine transfusion of blood.

         At trial, Hamilton's standard-of-care expert, Dr. Joseph Bruner, a board-certified perinatologist, testified that an abnormality was present on the February 25, 2005, ultrasound and that the ultrasound required a referral to a perinatologist because it indicated that Tristian was developing hydrops. He further testified that Tristian needed an intrauterine transfusion, that he had performed "quite a few" such procedures in 2005, and that "[t]he earliest transfusion that I can recall doing is 17 weeks." Dr. Bruner testified that if Tristian had received an intrauterine transfusion in time his chances of survival were "probably 85 to 90 percent."

         IMG and Dr. Scott countered with testimony from Dr. John Owen, a perinatologist who, at the time of the medical care in question, was practicing at the University of Alabama at Birmingham Hospital ("UAB"), which is where Dr. Scott stated he would have referred Hamilton if she had asked for a referral to a perinatologist. Dr. Owen testified that, based on his review of the February 25, 2005, ultrasound, hydrops was not present in the baby at that time. Dr. Owen stated that, because hydrops was not present, the standard of care did not require Dr. Scott to refer Hamilton to a perinatologist. Dr. Owen also testified that, if Hamilton had been referred to UAB on February 25, 2005, she would have been sent home with instructions to return for another ultrasound in two weeks. Dr. Owen further testified that in February 2005 UAB was not performing intrauterine transfusions until 22 weeks in gestational age for a patient who had been diagnosed with parvovirus, even if the patient had had a finding of hydrops on the ultrasound.

         Before the presentation of evidence, Hamilton requested certain jury instructions regarding causation.[3] Some of those requested instructions were based on language from this Court's opinion in Parker v. Collins, 605 So.2d 824 (Ala. 1992). Specifically, Hamilton's requested instructions relied upon the Parker Court's statement -- the context for which is explained in the "Analysis" portion of this opinion -- that "the issue of causation in a malpractice case may properly be submitted to the jury where there is evidence that prompt diagnosis and treatment would have placed the patient in a better position than she was in as a result of inferior medical care." 605 So.2d at 827.

         IMG and Dr. Scott objected to the requested jury instructions that used language from Parker on the ground that the "better-position" language employed in Parker could not apply in a wrongful-death action because the only standard for such a claim is that a breach of the standard of care probably caused the decedent's death.

         The trial court refused to give Hamilton's requested jury instructions incorporating Parker's "better-position" principle. In explaining its refusal to give the requested instructions, the trial court stated:

"THE COURT: Well, you know, even looking at the Parker case, it says ... '[t]here was medical testimony to show that prompt treatment of the patient probably could not have prevented the occurrence of a heart attack. However, there was also evidence that more immediate care could have lessened the severity of the heart attack and possibly prevented the patient's death.' So what I understand from that is that you're going to have to show that the lack of immediate care or some delay in the treatment or care probably caused the death. I think this is different from an injury as opposed to a death situation. The injury in this case is the death. And so I say all that to say that I don't think your jury charge is appropriate and I'm going to deny your request to give that charge."

         On August 14, 2015, the jury returned a verdict in favor of Dr. Scott and IMG. The trial court entered a judgment consistent with that verdict. Hamilton filed a motion for a new trial on September 11, 2015. On December 1, 2015, the trial court denied Hamilton's motion. Hamilton filed a timely appeal.

         II. Analysis

         Hamilton argues that the trial court committed three separate errors that each warrant a new trial. First, she contends that her substantial rights were harmed by the trial court's refusal to allow her to testify that Talley allegedly told Hamilton that the abnormalities present on the February 25, 2005, ultrasound dictated that she would be referred to a perinatologist. Second, Hamilton argues that the trial court erred in refusing to give her requested jury instructions that incorporated the "better-position" principle from Parker, an error Hamilton says caused the jury to misunderstand what she had to prove. Third, Hamilton asserts that the trial court erred by refusing to use Tristian's name in the jury charges and thereby "did not afford him the dignity it would afford any other deceased person."

         We conclude that the trial court did not exceed its discretion in concluding, under Rule 403, Ala. R. Evid., that the probative value of Hamilton's testimony concerning what Talley told her was substantially outweighed by the risk of unfair prejudice. The trial court discerned that there was a real possibility that the jury could view Talley's alleged statements about what she had observed on the ultrasound and whether Hamilton needed a referral to a specialist as evidence indicating that Dr. Scott breached the standard of care, a matter beyond Talley's expertise.

         We also conclude that the trial court acted within its discretion in electing to use the terms "unborn child" or "stillborn child" rather than Tristian's name in the jury charges. By using those terms, the trial court acknowledged the fact that Tristian was a human being, and those terms were not demeaning. Moreover, the trial court also allowed Hamilton and her counsel to refer to the child by his name throughout the proceedings.

         Hamilton's contention that the trial court committed reversible error by failing to give her requested jury instructions, which incorporated the "better-position" concept ...


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