Coleman v. Anniston HMA, LLC

255 So. 3d 166
CourtSupreme Court of Alabama
DecidedDecember 1, 2017
Docket1151212
StatusPublished

This text of 255 So. 3d 166 (Coleman v. Anniston HMA, LLC) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Coleman v. Anniston HMA, LLC, 255 So. 3d 166 (Ala. 2017).

Opinion

PER CURIAM.

AFFIRMED. NO OPINION.

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.

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 *167nurses 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 *168raised 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

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Bluebook (online)
255 So. 3d 166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coleman-v-anniston-hma-llc-ala-2017.