O'Rear v. B.H.

69 So. 3d 106, 2011 Ala. LEXIS 32, 2011 WL 835061
CourtSupreme Court of Alabama
DecidedMarch 11, 2011
Docket1090359
StatusPublished
Cited by37 cases

This text of 69 So. 3d 106 (O'Rear v. B.H.) 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
O'Rear v. B.H., 69 So. 3d 106, 2011 Ala. LEXIS 32, 2011 WL 835061 (Ala. 2011).

Opinions

COBB, Chief Justice.

B.H.1 sued Dr. Delane O’Rear and Baptist Health Centers, Inc., Dr. O’Rear’s employer, on October 22, 2001. In his complaint, B.H. alleged negligence, wantonness, medical malpractice, assault,2 and the tort of outrage against Dr. O’Rear and negligent hiring, training, supervision, and retention against Baptist Health Centers, Inc. The claims against Baptist Health Centers, Inc., were dismissed before trial, as was Dr. O’Rear’s third-party complaint seeking indemnity under his liability policy from his medical-malpractice [110]*110insurer, Medical Assurance Company. The case was tried before a jury in Walker County on April 14-23, 2009, only on B.H.’s claims against Dr. O’Rear. At the conclusion of the presentation of the evidence, the case was submitted to the jury. The jury found in favor of B.H. and awarded compensatory damages of $1,000,000 and punitive damages of $2,000,000. The trial court entered a judgment on the verdict on April 24, 2009. Dr. O’Rear filed postjudgment motions seeking, alternatively, a judgment as a matter of law, vacation or alteration of the judgment, or a new trial. The post-judgment motions were argued before the trial court on August 11, 2009, and were denied. This appeal ensued.

The trial court’s detailed order denying Dr. O’Rear’s postjudgment motions summarizes much of the evidence presented at the trial. The trial court’s order notes that B.H. had been a patient of Dr. O’Rear’s but that there were factual discrepancies with respect to the time that B.H. had been a patient. The trial court stated:

“To first deal with the undisputed time periods, a jury could find substantial evidence to support the following facts:
“That V. Delane O’Rear was a physician practicing in Walker County, Alabama; that [B.H.] was a patient of the doctor; that Dr. O’Rear prescribed medicine to [B.H.] which included opiate based, and otherwise addictive, medicines; that during that time, Dr. O’Rear engaged in a homosexual relationship with [B.H.]; that [B.H.] expected, and Dr. O’Rear provided, prescriptions in exchange for sex; that during that time, [B.H.] reproduced on a copy machine certain of the prescriptions written by Dr. O’Rear, and upon presenting them at pharmacies, the copies were discovered; that Dr. O’Rear was notified, and [B.H.] was charged with a crime for that act; that having been notified, and being aware of this, Dr. O’Rear continued to treat [B.H.] and continued to write prescriptions for [B.H.] for opiate based medicines; that Dr. O’Rear had [B.H.’s] grandmother pick up prescriptions for [B.H.] at Dr. O’Rear’s office; that on one occasion, Dr. O’Rear personally delivered a prescription to [B.H.’s] grandmother at a residence where she worked, and instructed her not to give the medicine to [B.H.] until [B.H.] was out of the store; that when he now considered the medical records of [B.H.J, they contained what Dr. O’Rear admitted were warning signs of [B.H.’s] drug abuse or addiction; and that in spite of that, Dr. O’Rear continued to treat [B.H.] on until November 3, 1999, at which time [B.H.] recorded their last sexual encounter in Dr. O’Rear’s office and [B.H.] never returned.”

The record supports the trial court’s view of the evidence. We note further that the record indicates that Dr. O’Rear had practiced family medicine in Jasper for over 30 years and that he retired from the practice of medicine in 2003. With respect to Dr. O’Rear’s testimony, the trial court’s order denying the postjudgment motions states:

“Dr. O’Rear identified two versions of the Hippocratic Oath, and the applicable rule from the American Medical Association along with its annotations. He testified unequivocally and without objection that these applied to him and that they established the standard of care applicable to him concerning sexual contact with a patient. These were offered into evidence without objection. The jury could have found without question that these established the applicable standard of care, and that Dr. O’Rear’s conduct, as set out above, violated the [111]*111standard of care to which he himself had testified he was subject.
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“[B.H.] examined Dr. O’Rear as to his training, education and experience, and allowed him to identify the Hippocratic Oaths and the American Medical Association Rules. Dr. O’Rear, without objection, testified that those established standards of care to which he was bound. Dr. O’Rear testified that he took the Hippocratic Oath upon graduation from medical school, and that he broke his oath. Again without objection, Dr. O’Rear testified that based upon a hypothetical question from [B.H.], that if the jury believed that he engaged in the conduct substantially set out by the Court in this Order above, that it would be malpractice.... [Tjhere was competent testimony from an expert, not only similarly situated to Dr. O’Rear, but from the doctor himself, as the standard of care applicable and the violation of that standard.”

Again, this Court agrees with the trial court’s summary of the evidence as elicited from Dr. O’Rear.

In addition to Dr. O’Rear’s testimony concerning the medical and ethical standards under which he was obligated to conduct his practice, the trial court’s order denying Dr. O’Rear’s postjudgment motions discusses Dr. O’Rear’s knowledge of B.H.’s dependence on the drugs Dr. O’Rear prescribed.

“Dr. O’Rear finally and reluctantly admitted that in reviewing [B.H.’s] medical records kept by Dr. O’Rear himself that there were telltale signs and warnings of addiction.
“In point of fact, it is undisputed that Dr. O’Rear continued prescribing addictive drugs to [B.H.] after [B.H.] used one of Dr. O’Rear’s prescriptions to make copies on a copy machine to try to obtain more drugs, and went so far as to have [B.H.’s] grandmother pick up the prescriptions rather than putting them in [B.H.’s] hands. For a probation violation on this very charge, [B.H.] was ultimately incarcerated.”

With respect to the evidence that was in dispute, the trial court noted that there was substantial evidence showing that Dr. O’Rear exchanged addictive opiate drugs for sex with B.H. when B.H. was a minor and that he did so under circumstances not associated with Dr. O’Rear’s medical practice, i.e., at locations other than Dr. O’Rear’s office or in Dr. O’Rear’s office but at times when Dr. O’Rear’s medical office was closed. Although the record does contain one emergency-room record from 1991 showing Dr. O’Rear as B.H.’s family physician, Dr. O’Rear testified that no sexual encounters occurred with B.H. during B.H.’s minority, and he offered the absence of any medical records for B.H. for the period from 1992 to 1994, when B.H. was 14 to 16 years old, to confirm that fact. Dr. O’Rear and B.H. both testified as to incidents when B.H. claimed that a prescription Dr. O’Rear had written him had been accidentally lost or destroyed — “the puppy chewed them up” — and both testified that Dr. O’Rear always rewrote those prescriptions. Dr. O’Rear testified that his sexual relationship with B.H. began when B.H. was 20 years old and lasted approximately 18 months. Dr. O’Rear admitted to having approximately 15 to 20 sexual encounters with B.H. during that time. Dr. O’Rear stated that the relationship was consensual.

However, there was also evidence from B.H. and members of his family and various witnesses disputing Dr. O’Rear’s evidence.

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Bluebook (online)
69 So. 3d 106, 2011 Ala. LEXIS 32, 2011 WL 835061, Counsel Stack Legal Research, https://law.counselstack.com/opinion/orear-v-bh-ala-2011.