from DeKalb Circuit Court (CV-06-149)
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.
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.
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.
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.
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.
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."
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
"Q. What did he say?
"A. He said we can handle it here."
testified that Dr. Scott did not tell her that he could not
perform a percutaneous umbilical blood sampling
("PUBS"),  that he was not qualified to perform a
PUBS procedure, or that he was not qualified to perform an
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
"[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."
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.
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.
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.
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."
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.
the presentation of evidence, Hamilton requested certain jury
instructions regarding causation. 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
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
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
"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
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.
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
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.
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.
contention that the trial court committed reversible error by
failing to give her requested jury instructions, which
incorporated the "better-position" concept ...