Dansby v. Hagood

719 So. 2d 839, 1998 Ala. Civ. App. LEXIS 578, 1998 WL 456373
CourtCourt of Civil Appeals of Alabama
DecidedAugust 7, 1998
Docket2970756
StatusPublished
Cited by3 cases

This text of 719 So. 2d 839 (Dansby v. Hagood) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dansby v. Hagood, 719 So. 2d 839, 1998 Ala. Civ. App. LEXIS 578, 1998 WL 456373 (Ala. Ct. App. 1998).

Opinion

HOLMES, Retired Appellate Judge.

Vicki Dansby and her husband, Hubert Alan Dansby, appeal a summary judgment entered in favor of John Hagood, D.M.D., in a medical malpractice case. We affirm.

Our review of the record reveals the following: In 1994 Mrs. Dansby’s dentist referred her to Dr. Hagood, another local practitioner, for the repair of several crowns. On August 18,1994, Dr. Hagood determined that it would be necessary to replace two of the crowns. On August 29, 1994, Dr. Hagood removed the existing crowns, made impressions, and provided temporaries.

On September 16, 1994, Dr. Hagood provided Mrs. Dansby with permanent crowns. During the procedure, Mrs. Dansby felt a sensation that something was in her throat, but she could not distinguish what it was because her mouth was deadened. Mrs. Dansby immediately pushed Dr. Hagood’s hand away, telling him that she needed to “throw up.” Mrs. Dansby went to the restroom and then allowed Dr. Hagood to complete the procedure.

On September 26, 1994, ten days after the dental procedure, Mrs. Dansby fainted in her bathroom and awoke in a pool of blood. She called her daughter, who drove her to the emergency room at Lakeview Community Hospital in Eufaula, where she was treated by Dr. Elizabeth Robinson.

Dr. Robinson admitted Mrs. Dansby, who was 52 years of age, to the intensive care unit with a diagnosis of a lower gastrointestinal bleed (GI bleed). The following day, Dr. Robinson performed a bowel prep and a colo-noscopy on Mrs. Dansby. Dr. Robinson noted that the colonoscopy showed diverticulosis and internal hemorrhoids, but no active bleeding or clots. Dr. Robinson further noted that the GI bleed was probably secondary to diverticulosis, a condition of the colon whereby little pockets herniate from the wall of the colon. Dr. Robinson explained in her deposition that diverticulosis is extremely common in patients over age 50.

After her discharge, Mrs. Dansby experienced five additional episodes of passing clots from her rectum. On September 29, 1994, Dr. Robinson performed another colonosco-py, as well as an upper gastrointestinal endoscopy, on Mrs. Dansby. Dr. Robinson noted that there were multiple dark clots in the middle and lower portion of the colon and that the area was filled with clots. Dr. Robinson was unable, however, to establish the exact location of the bleeding and determined that Mrs. Dansby would probably need an arteriogram, which is an X-ray of an artery after the injection of dye into the artery. This test allows the doctor to actually look at the vessels in the colon to see an active bleed. At that point, Dr. Robinson transferred Mrs. Dansby to Flowers Hospital for further treatment by Dr. Doss Cleveland.

After being admitted to Flowers, however, Mrs. Dansby had no further bleeding. Dr. Cleveland observed Mrs. Dansby for several days and then discharged her, noting that an arteriogram would serve no useful purpose since she had not experienced any bleeding while under his care.

After Mrs. Dansby returned home, she cleaned the blood-stained rug in her bathroom. While soaking the rug in a tub of vinegar and water, something stuck Mrs. Dansby’s hand; she reached down and retrieved what later proved to be a number four latch-type drill bur. Mrs. Dansby took the bur to Dr. Robinson’s office. According to Mrs. Dansby, Dr. Robinson stated that the bur was the “culprit” and that Mrs. Dansby needed to contact an attorney. Dr. Robinson strongly denies making such statements.

[841]*841On August 26,1996, Mrs. Dansby sued Dr. Hagood under the Alabama Medical Liability Act of 1987, which is codified at Ala.Code 1975, §§ 6-5-540 through -552. In her complaint, Mrs. Dansby alleged that on September 16, 1994, Dr. Hagood breached the standard of care because, she said, he negligently and/or wantonly permitted her to ingest a drill bur, and he failed to inform her of the incident. As a result, Mrs. Dansby claimed that she suffered rectal bleeding; incurred substantial medical expenses; and endured substantial pain, suffering, and mental anguish. Her husband claimed damages for loss of consortium.

On January 30, 1998, Dr. Hagood filed a motion for a summary judgment, pursuant to Rule 56(e), Ala. R. Civ. P. On February 24, 1998, the trial court granted Dr. Hagood’s motion, finding that Mrs. Dansby had failed to present substantial evidence that Dr. Ha-good’s alleged negligence had probably caused Mrs. Dansby’s injury.

The Dansbys appeal. This case is before this court pursuant to Ala.Code 1975, § 12-2-7(6).

Initially, we note that in Hawkins v. Carroll, 676 So.2d 338, 340 (Ala.Civ.App.1996), this court set forth the following law regarding summary judgments in medical malpractice cases:

“A summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Leonard v. Providence Hospital, 590 So.2d 906 (Ala.1991); Rule 56, Ala. R. Civ. P. ‘In determining whether a summary judgment was properly entered, the reviewing court must view the evidence in a light most favorable to the nonmovant.’ Leonard, supra, at 907. When the movant makes a prima facie showing that no genuine issue of material fact exists, the burden shifts to the nonmovant to present ‘substantial evidence’ to support his position. Id. When the defendant offers expert testimony that makes a prima facie showing of a lack of negligence, the defendant is entitled to a summary judgment, unless the plaintiff counters the defendant’s evidence with expert testimony in support of his position. Pettigrew v. Harris, 631 So.2d 839 (Ala.1993). In a medical malpractice case, such as here, Rule 56 must be read in conjunction with the ‘substantial evidence’ rule found at § 6-5-548(a) of the Alabama Medical Liability Act. Id. Section 6-5-542(5) of the Act defines ‘substantial evidence’ as follows: ‘Substantial evidence is that character of admissible evidence which would convince an unprejudiced thinking mind of the truth of the fact to which the evidence is directed.’
“In order to recover in a medical malpractice case, a plaintiff must prove by expert testimony that the physician breached the standard of care and by the breach proximately caused the plaintiffs injury. University of Alabama Health Services Foundation v. Bush, 638 So.2d 794 (Ala.1994). ‘To establish a physician’s negligence, the plaintiff ordinarily must proffer expert medical testimony as to what is or is not the proper practice, treatment, or procedure.’ Complete Family Care v. Sprinkle, 638 So.2d 774, 777 (Ala.1994).... The plaintiffs burden of proof regarding the applicable standard of care is found at § 6-5-548(a), which provides:
“ ‘(a) In any action for injury or damages or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care the plaintiff shall have the burden of proving by substantial evidence that the health care provider failed to exercise such reasonable care, skill, and diligence as other similarly situated health care providers in the same general line of practice, ordinarily have and exercise in a like case.’
“ ‘This section has been read as requiring that the “community” standard of due care, see § 6-5-484(a), be established by expert medical testimony.’ Leonard, supra, at 908. ‘Community’ has been interpreted to mean the national medical community. Sprinkle, supra.”

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Bluebook (online)
719 So. 2d 839, 1998 Ala. Civ. App. LEXIS 578, 1998 WL 456373, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dansby-v-hagood-alacivapp-1998.