Rel: October 4, 2024
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA SPECIAL TERM, 2024
_________________________
SC-2023-0294 _________________________
Frances Koe, M.D., and Wills Valley Family Medicine, LLC
v.
Donna Ratliff, as personal representative of the Estate of Rhoda Gail McBride, deceased
Appeal from DeKalb Circuit Court (CV-18-900266)
SELLERS, Justice. 1
1This case was originally assigned to another Justice on this Court;
it was reassigned to Justice Sellers on August 21, 2024. SC-2023-0294
Donna Ratliff, as the personal representative of the estate of Rhoda
Gail McBride, deceased, commenced a wrongful-death medical-
malpractice action in the DeKalb Circuit Court against Frances Koe,
M.D., and Wills Valley Family Medicine, LLC ("Wills Valley"). A jury
returned a verdict in favor of Dr. Koe and Wills Valley. The trial court,
however, entered a judgment granting Ratliff's motion for a new trial and
vacated the jury's verdict. Dr. Koe and Wills Valley appealed. We
reverse the trial court's judgment.
On November 3, 2016, McBride sought treatment for leg pain at a
medical clinic operated by Wills Valley. McBride's daughter, Ratliff,
attended the appointment with McBride. Ratliff testified that McBride
had lived with her at that time but that McBride had been able to handle
most of her own medical decisions, had handled her own medications, had
had her own transportation, and had been very independent until she
had developed the leg pain. Ratliff testified that she had attended some,
but not all, of McBride's medical appointments. However, the evidence
indicates that McBride authorized Ratliff to communicate with health-
care providers regarding McBride's care and to allow Ratliff to be
counseled on McBride's behalf regarding medication.
2 SC-2023-0294
A nurse practitioner employed by Wills Valley, Brandi Ware,
referred McBride to an imaging center for an ultrasound, which took
place on December 2, 2016. The ultrasound revealed that McBride was
suffering from a blood clot. Ware consulted with Dr. Koe regarding the
blood clot, and Dr. Koe instructed that McBride was to be prescribed
Coumadin, a blood thinner. According to Dr. Koe, she told Ware that
McBride would need to have her blood tested promptly for thinness and
would possibly need to do so every week thereafter. Ware had a medical
assistant employed by Wills Valley, Summer Gilreath, call McBride on
her telephone to inform her of the diagnosis and that she needed to take
Coumadin and come in for a blood test at the beginning of the next week.
Ratliff's testimony suggests that she answered McBride's telephone.
Although Gilreath testified that she did not specifically remember her
conversation with Ratliff, she stated that she would have followed
established protocol, which called for her to relay to patients that
Coumadin is a blood thinner that can cause bleeding, that patients are to
follow up a week after starting Coumadin, and that weekly blood tests
are necessary to test the thickness of a patient's blood while taking the
medication. Ratliff, however, denied that Gilreath had told her that
3 SC-2023-0294
McBride would need weekly blood tests. There is no evidence indicating
that Dr. Koe or nurse practitioner Ware spoke with McBride or Ratliff
about Coumadin or the need for blood tests.2
After her telephone conversation with Gilreath, Ratliff dropped
McBride off at their home and went to a pharmacy to retrieve the
Coumadin. Pharmacist Andrea Ashley dispensed McBride's Coumadin
prescription. Ratliff claimed that she had asked Ashley whether there
was anything Ratliff needed to know about the medication because
McBride had never taken it. Although Ashley did not specifically
remember her conversation with Ratliff, her standard practice would
have been to inform patients that Coumadin is a blood thinner with a
high risk of causing bleeding; to instruct patients that they should not
take certain medications, such as NSAIDs, with Coumadin; to instruct
2As Dr. Koe and Wills Valley put it in their briefing to this Court,
Ratliff "attempted to insulate McBride from Ratliff's communications with healthcare providers when … seeking post-trial relief from the jury's verdict." Dr. Koe and Wills Valley's reply brief at 3. She makes the same attempt on appeal. It appears, however, that it was undisputed during the trial that Ratliff was McBride's authorized agent for purposes of receiving information regarding her health care and prescription medications. It does not appear that there was ever any objection lodged during the trial directed at the relevancy of communications between health-care providers and Ratliff on behalf of McBride. Indeed, Ratliff herself relied extensively on those communications. 4 SC-2023-0294
patients to stay aware of bleeding and to control bleeding if it occurs; and
to ask patients whether they have a follow-up appointment with their
doctors. Ashley, however, admitted that any "medical advice" would have
needed to come from McBride's doctors and that McBride's doctors would
have been responsible for setting up the necessary blood tests. For her
part, Ratliff testified that she was never informed that Coumadin is a
blood thinner or about the necessity for regular blood tests.
Ashley also testified that her standard practice included stapling a
medication guide, which is required by law, to the prescription bag.
Coumadin's medication guide contains numerous "black box" warnings
regarding Coumadin, including the possibility of "very bad and
sometimes deadly bleeding," and advises of the need for a test that
measures whether a patient's blood has become too thin. Specifically, the
guide states, among other directives:
"You will need to have your blood work (PT/INR) checked while you take this drug. This is important to make sure the drug works right and to check your risk of bleeding. Have your PT/INR checked as you have been told by your doctor or other healthcare provider. If you are not sure when you need to have your PT/INR checked, call your doctor or other healthcare provider."
5 SC-2023-0294
The Coumadin prescription bottle specifically instructs users of the
medication to review the medication guide. Ratliff acknowledged that a
medication guide could have been stapled to the prescription bag, but she
claimed that she did not remember seeing it. Ratliff also testified that
she never gave the prescription bag or a medication guide to McBride.
On December 6, 2016, consistent with Wills Valley's protocol that
Coumadin patients follow up in a week, Ratliff took McBride for a blood
test at Wills Valley's medical clinic. Gilreath testified that she could not
recall whether she or another medical assistant had collected McBride's
blood on that day. According to Gilreath, regardless of who worked with
McBride, each of the medical assistants would have followed the same
protocol to inform McBride that the purpose of the blood test was to check
the thickness of her blood and that it was important to return the
following week for an additional blood test.
Dr. Koe testified that the standard for testing a patient who has
been prescribed Coumadin varies based on the patient's initial test
results. Dr. Koe testified that, after a patient's first blood test, her staff
would "usually tell them when to return" and that, in McBride's case, "we
needed to tell [McBride] she needed to come back in a week." Dr. Koe
6 SC-2023-0294
explained that further testing would depend on the thinness of the
patient's blood and that patients did not need to make specific
appointments in order to obtain additional blood tests. Based on her and
her staff's standard procedure, Dr. Koe testified that she was confident
that McBride had been instructed to return in a week for another blood
test, and Gilreath testified that she did not think it possible that McBride
had not been so advised. Ratliff, however, testified that she and McBride
left after McBride's blood had been collected and that no one had told her
or McBride of the need to return for more testing.
Ratliff testified that she had not received any results of the blood
test by December 12, 2016, and that she had called Wills Valley to
schedule an appointment to learn more about McBride's condition and
medication. McBride's telephone records indicate that, on December 12,
two calls were made from McBride's telephone to Wills Valley and that,
subsequently, two calls were received on McBride's telephone from Wills
Valley. McBride's medical records contain an entry for December 12 that
reads as follows: "f/u [follow up] on lab results/blood thinner meds/wants
more education." McBride was scheduled for an appointment to occur on
December 14, 2016. Dr. Koe testified that the appointment was not
7 SC-2023-0294
specifically made for the purpose of conducting another blood test, but
her testimony suggests that a blood test could have been conducted at
that time. Ratliff testified that she and McBride had been unaware of
any plan for conducting another blood test on that date. In any event, on
the day of the appointment, McBride asked Ratliff to cancel her
appointment because she was suffering from gastrointestinal issues.
Ratliff called Wills Valley and left a voicemail message canceling the
appointment. McBride's telephone records indicate that her telephone
received a subsequent call from Wills Valley the same day.
Ratliff testified that, on December 19, 2016, she received an
automated telephone message from Wills Valley suggesting that McBride
had missed an appointment and instructing her to call Wills Valley to
reschedule. The defendants presented evidence indicating that someone
from Wills Valley had returned Ratliff's call on December 14, 2016, that
an appointment had been rescheduled for December 21, 2016, and that
the December 19 automated telephone message was simply a reminder
of the December 21 rescheduled appointment. The evidence also
indicated that someone had "pressed 1" on the telephone that had
received the automated telephone message, which served to confirm the
8 SC-2023-0294
appointment for December 21. McBride's grandson, who had lived with
her and Ratliff during the relevant period, testified that he remembered
McBride missing the December 14 appointment because of illness and
that "she said she was going to reschedule." He testified that McBride or
Ratliff had told him that an appointment had been rescheduled for "close
to Christmas." For her part, Ratliff testified that she had not been aware
of an appointment on December 21 and that she did not know who would
have confirmed that appointment. In any event, McBride did not attend
an appointment on December 21.
On December 24, 2016, McBride suffered a brain bleed, and she
died the following day. Testing showed that her blood was too thin and
that she had suffered from "Coumadin toxicity." Ratliff testified that, if
she or McBride had known of the need for follow-up blood testing, she
would have ensured that McBride had had that testing.
The trial court denied Ratliff's motion for a judgment as a matter of
law on the subject of McBride's alleged contributory negligence and
agreed to charge the jury on that defense. The trial court instructed the
jury as follows:
"The defendants, Dr. Koe and Wills Valley Family Medicine, say that Rhoda McBride's conduct in failing to 9 SC-2023-0294
return to the clinic for the December 14th and 21st appointments was negligent and that it caused -- and that it was a cause of her harm. This is called contributory negligence, and it is a defense to the plaintiff's claim that Dr. Koe and Wills Valley Family Medicine were negligent. Contributory negligence is the failure to use reasonable care to prevent harm to one's self. The defense of contributory negligence pertains solely to the December 14th and 21st appointments.
"To prove this defense, the defendants must prove to your reasonable satisfaction by substantial evidence all of the following. That Rhoda McBride had knowledge of the existence of the December 14th and December 21st appointments, that Rhoda McBride appreciated the danger of missing the December 14th and December 21st appointments, and that Rhoda McBride failed to exercise care for her own safety by putting herself in the way of danger. If you find … that these three elements were proven by substantial evidence, then you would find Rhoda McBride guilty of contributory negligence if you determine her negligence proximately caused her harm. Alternatively, if you find that these three elements were not proven by substantial evidence, then you would find that Rhoda McBride was not guilty of contributory negligence."
Dr. Koe and Wills Valley refer to this charge as "blending contributory
negligence and assumption of the risk." Dr. Koe and Wills Valley's brief
at 36. They appear to suggest that a contributory-negligence defense
does not necessarily require proof that a plaintiff subjectively
"appreciated the danger" and chose to put herself in harm's way. Id.
They note that they asked the trial court to use a pattern jury instruction
10 SC-2023-0294
providing simply that they had to prove that McBride "was negligent"
and that her "negligence was a cause of her harm." Id. at 44-45.
However, they also state in their brief to this Court that the jury
instruction that was allegedly a "more strenuous definition of what was
required [in proving contributory negligence]" is "not assigned as error
here." Id. at 36-37.
The jury returned a verdict for the defendants, and Ratliff filed a
renewed motion for a judgment as a matter of law on contributory
negligence and a motion for a new trial. The trial court granted Ratliff's
motion for a new trial, concluding that the defendants had not presented
sufficient evidence supporting their contributory-negligence defense and
that the trial court had, therefore, erred in submitting that defense to the
jury. According to the trial court:
"[T]he defendants failed to present substantial evidence that Ms. McBride's actions deviated from what a reasonably prudent person would have done in the same or similar circumstances, proximately contributing to her injuries and death.
"….
"… Alabama case law is clear: there must be some understanding of the danger to determine if the [injured person] acted as a 'reasonably prudent person' would act, and to determine if that person's actions proximately caused his 11 SC-2023-0294
or her injury. The Court finds this to be especially true in a matter involving complex medical knowledge not known to a reasonably prudent layperson.
"Here, the record reveals no substantial evidence that Ms. McBride knew or should have known of the importance of continued visits to Dr. Koe's office for blood work. Absent being told by a medical professional to continue reporting for blood work, a reasonably prudent layperson would not know to do so. …
"The only appearance in the record where [McBride] was specifically informed to report for blood work -- when Summer Gilreath telephoned her the day of Ms. McBride's diagnosis -- Ms. McBride did exactly that. There are no other instances in the record where Dr. Koe, or anyone at her direction, told Ms. McBride that she needed to continue reporting for blood work.
"… Moreover, even if knowledge or appreciation of danger were not required, there is still a lack of substantial evidence in the record that Dr. Koe, or anyone at her direction, informed Ms. McBride to continue reporting for blood work or that anyone in Dr. Koe's office scheduled Ms. McBride for additional blood work after the first appointment."
(Emphasis in original.) The trial court subsequently denied the
defendants' motion to vacate the judgment granting a new trial, and this
appeal followed.
Ratliff relies on a very deferential standard that has been generally
applied to a trial court's judgment ordering a new trial. According to
Ratliff, the trial court's judgment is entitled to a presumption of 12 SC-2023-0294
correctness and should be affirmed unless the record plainly and palpably
shows error. See Beauchamp v. Coastal Boat Storage, LLC, 4 So. 3d 443,
450 (Ala. 2008). However, when a new trial is ordered because a jury's
verdict allegedly is against the great weight and preponderance of the
evidence, "[a]n order granting a new trial shall be reversed when on
review it is perceivable that the jury verdict is supported by the
evidence." Mitchell v. Johnson, 641 So. 2d 238, 239 (Ala. 1994) (citing
Jawad v. Granade, 497 So. 2d 471 (Ala. 1986)).
" 'While the "new trial" test is a subjective one ... and is measured by a discretionary standard, the range of the trial court's discretion, as announced in Jawad [v. Granade, 497 So. 2d 471 (Ala. 1986)], has been considerably narrowed. Thus, the trial court is left with no discretion to grant a new trial on a "weight of the evidence" ground, except when the verdict and the judgment entered thereon are so against the great weight and preponderance of the evidence as to be "plainly and palpably" wrong, i.e., "manifestly unjust." ' "
Lemley v. Wilson, 178 So. 3d 834, 841 (Ala. 2015) (quoting Richardson v.
Joines, 574 So. 2d 787, 787-88 (Ala. 1991)).
According to Ratliff, however, the trial court's judgment in this
case was based on reasons other than, or in addition to, a determination
that the evidence did not support the jury's verdict, namely, the alleged
"erroneous submission[ ] of a contributory negligence jury instruction to
13 SC-2023-0294
the jury." Ratliff's brief at 30. Thus, she says, we must apply the more
deferential plain-and-palpable-error standard. See Beauchamp, supra.
The trial court ordered a new trial because, it concluded, the
defendants had failed to submit sufficient evidence supporting their
contributory-negligence defense and the jury's verdict therefore could not
validly rest upon that defense. The alleged insufficiency of the evidence
is the reason the trial court gave in opining that it should not have
submitted the issue of contributory negligence to the jury and that a new
trial was warranted. Thus, the judgment under review appears most
akin to one that orders a new trial based on a trial court's conclusion that
a jury's verdict is not supported by the evidence. See Mitchell, supra
(applying the great-weight-and-preponderance-of-the-evidence standard
to a trial court's ruling that a new trial was warranted after a jury's
defense verdict because the defendant had not offered sufficient evidence
in support of her affirmative defense alleging a "sudden emergency" and,
therefore, that issue had been incorrectly submitted to the jury).
Accordingly, we will reverse the trial court's judgment if it is
"perceivable" that the jury's verdict was supported by the evidence.
Mitchell, supra. This Court has indicated that a contributory-negligence
14 SC-2023-0294
defense in a medical-malpractice action must be proven to a jury by
substantial evidence. Cackowski v. Wal-Mart Stores, Inc., 767 So. 2d
319, 330 (Ala. 2000). Finally, determinations on questions of law are
reviewed de novo. Bethel v. Franklin, 381 So. 3d 1121, 1126 (Ala. 2023).
Initially, Dr. Koe and Wills Valley frame one of the disputes in this
case as whether the trial court erred in concluding that the defendants,
in order to support their contributory-negligence defense, had to prove
that "Dr. Koe 'told' or 'informed' McBride to continue reporting for blood
work" so that she appreciated the danger of failing to have her blood
regularly tested and the hazardous nature of blood that is too thin. Dr.
Koe and Wills Valley's brief at 37. According to Dr. Koe and Wills Valley,
such a requirement implicates assumption of the risk, not contributory
negligence. See McKerley v. Etowah-DeKalb-Cherokee Mental Health
Bd., Inc., 686 So. 2d 1194, 1197 (Ala. Civ. App. 1996) (cited by Dr. Koe
and Wills Valley and stating that, in considering whether assumption of
the risk may properly be submitted to the jury, the reviewing court
"look[s] at whether the plaintiff knew of the risk, not whether he should
have known of it"). They appear to suggest that, regardless of whether
McBride subjectively knew of the danger of excessive bleeding and of the
15 SC-2023-0294
danger of failing to obtain further blood tests, there was sufficient
evidence indicating that, acting reasonably, she should have known of
those dangers. In support, they point to precedent such as H.R.H.
Metals, Inc. v. Miller, 833 So. 2d 18 (Ala. 2002), in which the Court
disapproved of a jury charge on contributory negligence because, in
requiring proof that the plaintiff " 'had knowledge of the existence of the
dangerous condition' " and conscious " 'appreciation of such danger,' " id.
at 26, the charge "engrafted a subjective standard (conscious
appreciation) onto the contributory-negligence defense," which "involves
an objective standard," id. at 27. According to the Court in H.R.H.
Metals, " 'it has long been recognized that contributory negligence may
also be predicated upon the failure to appreciate the danger when there
is a reasonable opportunity to do so under the circumstances.' " Id.
(quoting Alabama Power Co. v. Mosley, 294 Ala. 394, 398, 318 So. 2d 260,
263 (1975)) (emphasis omitted). See also Hannah v. Gregg, Bland &
Berry, Inc., 840 So. 2d 839, 860-61 (Ala. 2002) (noting that, for a court to
enter a judgment as a matter of law in favor of a defendant based on
contributory negligence, it must be shown that the plaintiff "put himself
in danger's way and that the plaintiff had a conscious appreciation of the
16 SC-2023-0294
danger at the moment the incident occurred," that "[t]he proof required
for establishing contributory negligence as a matter of law should be
distinguished from an instruction given to a jury when determining
whether a plaintiff has been guilty of contributory negligence," and that
"[a] jury determining whether a plaintiff has been guilty of contributory
negligence must decide only whether the plaintiff failed to exercise
reasonable care").
In its judgment awarding Ratliff a new trial, the trial court cited
Lyons v. Walker Regional Medical Center, Inc., 868 So. 2d 1071 (Ala.
2003), a medical-malpractice case in which the Court concluded that the
defendants had presented sufficient evidence in support of their
contributory-negligence and assumption-of-the-risk defenses. The trial
court in the present case concluded that, under Lyons, in medical-
malpractice cases, contributory negligence and assumption of the risk
should be "combined" and require "both a proof of knowledge and
appreciation of the danger." To be fair, Lyons did involve a "combined"
jury charge on contributory negligence and assumption of the risk. But
Lyons did not hold that a defendant in such a case necessarily must prove
that a plaintiff did indeed have subjective knowledge of the particular
17 SC-2023-0294
danger at issue in order to rely on a contributory-negligence defense.
Rather, the Court, after noting that there had been no objection to the
"combined" charge, concluded that there was sufficient evidence
justifying the jury's conclusion with respect to that charge.
It is not entirely clear, but it does not appear that Ratliff necessarily
disagrees with Dr. Koe and Wills Valley that they could support a
contributory-negligence defense with evidence indicating that McBride
should have been aware of danger, as she asserts in her brief to this Court
that the defendants "failed to present substantial evidence of any kind
showing that Rhonda McBride knew or should have known of some
danger [in missing two appointments at Wills Valley's medical clinic]."
Ratliff's brief at 41 (emphasis added). But Ratliff asserts that "[t]here
must be some knowledge and appreciation of some type of recognizable
danger to require a layperson patient to have to exercise reasonable care
to protect herself from harm." Id. (emphasis added).
Based on the precedent that Dr. Koe and Wills Valley cite, it is
certainly arguable that, in order to reach the jury with their contributory-
negligence defense, the defendants did not necessarily have to offer
evidence indicating that McBride subjectively appreciated danger. But,
18 SC-2023-0294
regardless, in our view, the evidence indicating that McBride should have
known of the danger of not following up with appointments at Wills
Valley's medical clinic, and of the even more specific danger of possibly
having overly thin blood and failing to obtain further blood tests, is also
sufficient to create a jury question as to whether she did indeed know of
those dangers. Dr. Koe told nurse practitioner Ware that, while on
Coumadin, McBride would need to have her blood tested promptly, and
possibly weekly, for thinness. Medical assistant Gilreath, who called
McBride's telephone, testified that her established protocol was to inform
patients of the nature of Coumadin and to instruct them to follow up in
a week and that they would likely need to take part in weekly tests of
blood thickness. Pharmacist Ashley testified that she informs patients
that Coumadin causes a high risk of bleeding and that she makes them
aware of the necessity of following up with their doctors. The medication
guide required by law to accompany a Coumadin prescription warns of
"very bad and sometimes deadly bleeding" and directs users of the
medication to have their blood checked for bleeding risk. The Coumadin
prescription bottle specifically instructs users of the medication to review
the medication guide. Gilreath testified that, when McBride had her
19 SC-2023-0294
blood tested in early December 2016, established protocol would have
been to inform McBride that testing of blood thickness was necessary and
to direct her to return in a week. The testimony of Dr. Koe, who was
confident that McBride had been informed of the testing requirements,
confirmed this protocol. Gilreath testified that it was not possible that
McBride had not been made aware of the need and the reason for the
blood tests. Testimony, as well as McBride's telephone and medical
records, show various communications regarding appointments, missed
appointments, rescheduled appointments, and confirmations of
appointments dealing with following up on test results, blood-thinner
medication, and requests for "more education." After McBride’s initial
blood tests during her December 6, 2016, appointment at Wills Valley's
medical clinic, there were 9 calls between Wills Valley and McBride's
telephone, totaling 20 minutes.
"Generally, the issue of whether a person is contributorily negligent
is a question of fact for the jury." Adams v. Coffee Cnty., 596 So. 2d 892,
895 (Ala. 1992). The evidence in this case must be "viewed in a light most
favorable to [the defendants] and all reasonable inferences the jury was
free to draw are indulged." Lemley, 178 So. 3d at 845. The defendants
20 SC-2023-0294
presented significant evidence, from witness testimony to warning labels,
indicating that Coumadin is dangerous and that physician consultation
is part of the prescription and therapy. Ratliff points to many instances
of her counsel's thorough examination of defense witnesses that was
clearly aimed at attacking the weight of their testimony. But it is the
role of the jury to judge the credibility of the witnesses. Flint Constr. Co.
v. Hall, 904 So. 2d 236, 250 (Ala. 2004). The question is not whether the
jury had to conclude that McBride was contributorily negligent, but
whether "it is perceivable that the jury verdict is supported by the
evidence." Mitchell, 641 So. 2d at 239. Based on the evidence, it is indeed
"perceivable" that the jury could have concluded that McBride was
contributorily negligent.
There was enough evidence to instruct the jury on contributory
negligence, and the verdict of the jury was not against the great weight
and preponderance of the evidence. On that basis, the jury's verdict
should have been upheld, and the judgment ordering a new trial must be
reversed.
REVERSED AND REMANDED.
Wise, Bryan, and Mendheim, JJ., concur.
21 SC-2023-0294
Cook, J., concurs specially, with opinion.
Mitchell, J., concurs in the result, with opinion.
Parker, C.J., dissents.
Stewart, J., dissents, with opinion.
22 SC-2023-0294
COOK, Justice (concurring specially).
I concur fully with the main opinion's conclusion that the jury's
verdict in this case should have been upheld because there was sufficient
evidence to instruct the jury on contributory negligence. I write
separately, however, to clarify for the bench and the bar the standard of
review that applies in cases such as this one.
The plaintiff, Donna Ratliff, as the personal representative of the
estate of Rhoda Gail McBride, deceased, asserted, among other claims, a
medical-malpractice claim under the Alabama Medical Liability Act ("the
AMLA"), Ala. Code 1975, § 6-5-480 et seq. and § 6-5-540 et seq., against
Frances Koe, M.D., and Wills Valley Family Medicine, LLC.
As the main opinion explains, Ratliff moved for a judgment as a
matter of law on the basis that the defendants had failed to provide
sufficient evidence demonstrating that McBride's own negligence had
contributed to her injuries and eventual death. The DeKalb Circuit Court
denied Ratliff's motion and charged the jury on that defense.
After the jury returned a verdict in favor of the defendants, Ratliff
moved for a new trial. In her motion, Ratliff's sole argument was that the
defendants had not presented sufficient evidence supporting their
23 SC-2023-0294
contributory-negligence defense and that the trial court had, therefore,
erred in submitting that defense to the jury. 3 The trial court agreed with
Ratliff, finding that the defendants had "failed to present substantial
evidence that Ms. McBride's actions deviated from what a reasonably
prudent person would have done in the same or similar circumstances,
proximately contributing to her injuries and death." (Emphasis added.)
It thus concluded that it should not have given the jury an instruction on
that defense.
Our Court has previously recognized that the standard of proof
under the AMLA requires a plaintiff to prove his or her case by
" ' "substantial evidence." ' " Cackowski v. Wal-Mart Stores, Inc., 767 So.
2d 319, 329 (Ala. 2000) (quoting Johnson v. Wagner, 678 So. 2d 782, 783
(Ala. 1996) (Houston, J., concurring specially), quoting in turn § 6-5-549,
Ala. Code 1975)). Likewise, as the main opinion correctly notes, "[t]his
3Likewise, the only argument made by Ratliff on appeal is that there was not substantial evidence in support of a finding of contributory negligence. And, in her brief, Ratliff appears to agree that this was the reason for the trial court's ruling: "The trial court should have entered judgment as a matter of law in favor of [Ratliff] on the contributory negligence defense, and it properly recognized that substantial evidence did not support that defense at trial, which is why it granted a new trial in its discretion." Ratliff's brief at 56-57 (emphasis added). 24 SC-2023-0294
Court has indicated that a contributory-negligence defense in a medical-
malpractice action must [also] be proven to a jury by substantial
evidence." ____ So. 3d at ____ (citing Cackowski, 767 So. 2d at 330
(concluding that the defendant "was also required to prove its affirmative
defense of contributory negligence by substantial evidence")). The
question of whether substantial evidence was presented in support of a
medical-malpractice claim or defense is a question of law. See, generally,
Cackowski, 767 So. 2d at 329-30. As noted by the main opinion, our Court
reviews questions of law de novo. See Bethel v. Franklin, 381 So. 3d 1121,
1126 (Ala. 2023). See also Rule 56, Ala. R. Civ. P., and Rule 50, Ala. R.
Civ. P.
However, Ratliff contends that our Court should apply a
discretionary standard in reviewing the trial court's decision to order a
new trial in this case. In support of that contention, Ratliff quotes Hill v.
Cherry, 379 So. 2d 590, 592 (Ala. 1980), for the following proposition:
"Granting or refusing a motion for new trial rests within the sound discretion of the trial court; the exercise of that discretion carries with it a presumption of correctness which will not be disturbed by this court unless some legal right was abused and the record plainly and palpably shows the trial court was in error."
25 SC-2023-0294
See Ratliff's brief at 29. According to Ratliff, the trial court "properly
recognized that substantial evidence did not support [the contributory-
negligence] defense at trial," Ratliff's brief at 56-57, and, thus, "did not
exceed its discretion when it granted [her] motion for new trial and set
aside the tainted jury verdict," id. at 36.
Contrary to Ratliff's position, the caselaw provided in the main
opinion and noted above makes clear that the question of whether
substantial evidence was presented in support of a medical-malpractice
claim or defense is a question of law that has been resolved by the trial
court. The resolution of a question of law cannot be reviewed under a
discretionary standard. The de novo standard of review is the standard
our Court must apply for questions of law.
That standard applies whether the movant is the plaintiff or the
defendant and whether the argument concerns a claim or a defense -- as
long as the basis for the argument is whether substantial evidence
existed in support of the medical-malpractice claim or defense.
Applying, as we must, the de novo standard of review to the
question of law presented here, the main opinion correctly concludes that
there was substantial evidence presented in support of the contributory-
26 SC-2023-0294
negligence defense and, consequently, in support of the jury's verdict. I
therefore agree that we must reverse the trial court's judgment ordering
a new trial.
27 SC-2023-0294
MITCHELL, Justice (concurring in the result).
I concur in reversing the trial court's judgment ordering a new trial.
But, in my view, the majority opinion's sufficiency-of-the-evidence
holding alone enables us to decide this appeal, and we should not go into
contributory negligence, assumption of the risk, or the burden of
persuasion for those defenses.
Whether substantial evidence was presented in support of a
medical-malpractice claim or defense is a question of law. Cackowski v.
Wal-Mart Stores, Inc., 767 So. 2d 319, 329-330 (Ala. 2000). And we
review questions of law de novo. See Bethel v. Franklin, 381 So. 3d 1121,
1126 (Ala. 2023). In doing so, we afford great deference to a jury's
determination and will reverse a trial court's judgment ordering a new
trial "when on review it is perceivable that the jury verdict is supported
by the evidence." Mitchell v. Johnson, 641 So. 2d 238, 239 (Ala. 1994)
(citing Jawad v. Granade, 497 So.2d 471 (Ala.1986)); see also Beauchamp
v. Coastal Boat Storage, LLC, 4 So. 3d 443, 450 (Ala. 2008).
I agree with the majority opinion that when we view the evidence
here in a light most favorable to the jury verdict, "it is perceivable that
[it] is supported." Mitchell, 641 So. 2d at 238; see also __ So. 3d at __. At
28 SC-2023-0294
trial, Frances Koe, M.D., and Wills Valley Family Medicine LLC, the
defendants, offered the following evidence: (1) the telephone calls
between Rhoda McBride and Wills Valley after her first blood-test
results, thus permitting the jury to find that McBride knew to return for
more blood tests; (2) scheduled appointments for which McBride failed to
appear after she had been prescribed Coumadin; and (3) the pharmacist's
testimony of her standard practice to warn patients of Coumadin's side
effects. This constituted sufficient evidence by which the jury could find
that McBride was contributorily negligent in causing her suffering from
Coumadin toxicity.
But I part ways with the majority opinion because it goes further
by discussing this Court's holding in Lyons v. Walker Regional Medical
Center, Inc., 868 So. 2d 1071 (Ala. 2003); the possible intersection of
assumption of the risk and contributory negligence; and whether a
successful contributory-negligence defense requires showing that a
plaintiff had subjective knowledge of a dangerous condition. See __ So.
3d at __. None of that discussion is necessary because, as the opinion
itself notes, "the evidence indicating that McBride should have known of
the danger of not following up with appointments ... [was] … sufficient to
29 SC-2023-0294
create a jury question as to whether she did indeed know of the danger."
__ So. 3d at __. I'm concerned that the extraneous discussion of
contributory negligence and assumption of the risk has the potential to
lead future litigants astray analytically, to cause confusion for the trial
courts, and to splinter our caselaw. Consequently, I am able to concur in
the result only.
30 SC-2023-0294
STEWART, Justice (dissenting).
"[T]his Court has recognized the presumption that a trial judge,
who has the advantage of observing all the parties involved in the trial,
including the jury and its reactions, is in a better position [than an
appellate court] to decide whether a verdict is flawed." Campbell v.
Kennedy, 275 So. 3d 507, 516 (Ala. 2018)(citing Daniels v. East Alabama
Paving, Inc., 740 So. 2d 1033, 1049 (Ala. 1999)).
In vacating the jury's verdict and granting a new trial, the trial
court did not consider whether the evidence was sufficient to support the
jury's verdict. 4 Instead, the trial court expressly determined that the jury
should not have had the opportunity to consider the contributory-
negligence defense because the defendants had not presented substantial
evidence in support of that defense. Because the trial court granted a new
trial "on grounds other than a finding that the verdict is against the great
weight or preponderance of the evidence, this Court's review is limited,"
4The main opinion construes the trial court's judgment granting a
new trial as determining that the evidence was insufficient to support the jury's verdict, and, thus, it views the evidence in the light most favorable to the defendants, finding that the jury's verdict "was not against the great weight and preponderance of the evidence." ___ So. 3d at ___. 31 SC-2023-0294
and the judgment should be reversed only if a " ' "legal right [was] abused
and the record plainly and palpably shows the trial judge to be in error." ' "
Baptist Med. Ctr. Montclair v. Whitfield, 950 So. 2d 1121, 1125-26 (Ala.
2006).
To submit a contributory-negligence defense to a jury in a medical-
malpractice case, a defendant must present substantial evidence showing
that the plaintiff had, or should have had, both (1) knowledge of the
dangerous condition and (2) an appreciation of the danger under the
surrounding circumstances and that (3) in light of that knowledge and
appreciation, the plaintiff failed to exercise reasonable care, by placing
himself or herself in the way of danger. See Imperial Aluminum-
Scottsboro, LLC v. Taylor, 295 So. 3d 51, 62 (Ala. 2019)(plurality
opinion); Lyons v. Walker Reg'l Med. Ctr., 791 So. 2d 937, 944 (Ala. 2000);
and Cackowski v. Wal-Mart Stores, Inc., 767 So. 2d 319, 327 (Ala. 2000).
I do not agree that there was substantial evidence indicating that
Rhoda McBride knew or should have known of the risks associated with
Coumadin and the necessity for repeated testing to warrant submission
32 SC-2023-0294
of that issue to the jury.5 Although there was some evidence suggesting
that Donna Ratliff had been presented with information that could have
put her on notice of the dangers associated with Coumadin and of the
importance of following up for blood testing, the defendants did not
present substantial evidence indicating that McBride -- the patient here
alleged to have been contributorily negligent -- was aware of the
information given to Ratliff. Nor can I conclude, based on the specific
circumstances presented in this case, that the jury could have imputed
Ratliff's knowledge of the dangers of Coumadin to McBride. 6 Thus, the
trial court's decision to grant a new trial was not plainly or palpably
5There was no direct evidence that McBride had an appreciation of
the dangers of Coumadin and of the failure to obtain regular blood testing. The evidence indicated that McBride had not received the medication guide provided with the Coumadin bottle, and, although there was some evidence indicating that a medical assistant may have informed McBride that she needed to return for further blood testing, there was not substantial evidence indicating that McBride had been directly informed of the specific importance of returning for such testing. Indeed, neither Dr. Koe, the medical assistant, nor the pharmacist could recall any interaction with McBride.
6The question of agency was not raised at trial or presented to the
jury, and the agency of a family member is not presumed. See, e.g., J.C. Jacobs Banking Co. v. Campbell, 406 So. 2d 834 (Ala. 1981). 33 SC-2023-0294
wrong, see Whitfield, supra, and it should be affirmed. Therefore, I
respectfully dissent.