Weber v. Freeman

3 So. 3d 825, 2008 Ala. LEXIS 130
CourtSupreme Court of Alabama
DecidedJune 26, 2008
Docket1060001 and 1060854
StatusPublished
Cited by11 cases

This text of 3 So. 3d 825 (Weber v. Freeman) 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
Weber v. Freeman, 3 So. 3d 825, 2008 Ala. LEXIS 130 (Ala. 2008).

Opinion

BOLIN, Justice.

Pursuant to Rule 5, Ala. R.App. P., this Court, on December 6, 2006, granted Dr. Therese Weber and The Radiology Group, P.A., permission to file an interlocutory appeal from an order of the trial court denying then motion to dismiss a wrongful-death action alleging medical malpractice. On April 24, 2007, this Court granted [827]*827Jackson Hospital & Clinic, Inc. (“Jackson”), permission to appeal from the denial of its motion to dismiss in the same wrongful-death action. We consolidated the appeals for the purpose of writing one opinion.

Facts and Procedural History

On December 20, 2002, three-month-old Samuel Freeman was treated at the emergency room at Jackson Hospital, a hospital owned and operated by Jackson, and released. On December 22, 2002, Samuel died from a bowel obstruction. On December 20, 2004, Samuel’s mother, Carolyn Freeman, sued Jackson, Dr. Bryan P. Sweet, Dr. Richard Doyan, and certain fictitiously named parties pursuant to Rule 9(h), Ala. R. Civ. P. Carolyn alleged that the defendants failed to diagnose Samuel’s bowel obstruction. Specifically, Carolyn’s complaint provided, in pertinent part:

“4. The Plaintiffs Decedent, infant Samuel Freeman, was born prematurely at 31 weeks gestation. Following his premature birth, Samuel Freeman was hospitalized for approximately a ten-week period at Baptist Medical Center South in Montgomery. During this prolonged admission, Samuel Freeman suffered several bouts of abdominal distention and on November 19, 2002, the baby was transferred to Children’s Hospital so that the disorder known as Hirsh-sprung’s Syndrome could be ruled out. Based on lab studies conducted at Children’s Hospital by the infant’s physicians, the physicians were able to rule out the possibility of Hirshsprung’s Syndrome. Thereafter, Samuel Freeman was transferred back to Baptist Medical Center South on November 24, 2002, and was discharged on December 4, 200[2],
“5. On December 20, 2002, CAROLYN FREEMAN, presented to Jackson Hospital emergency room with her infant son and told DR. SWEET, the doctor on duty in the Jackson Hospital emergency room, that she believed that the infant’s abdomen was distended. Mrs. Freeman also told DR. SWEET that her son had not slept the night before, and had cried continuously. Despite the fact that Carolyn Freeman told DR. SWEET that her infant had been hospitalized just a few weeks earlier, Dr. Sweet neither obtained the infant’s previous medical records nor did he call the Baptist Medical Center South physicians who had treated the infant during that recent admission. Significantly, DR. SWEET did not perform an abdominal examination of the infant. Moreover, DR. SWEET did not order any blood tests, even though the infant was breathing significantly higher than the normal rate. DR. SWEET did order abdominal x-rays; a flat and an upright x-ray of the infant’s abdomen. The x-ray films revealed a ‘marked gaseous distention of the colon suggesting bowel obstruction,’ a condition which DR. SWEET affirmed by his handwritten notation on the infant’s emergency room medical record on December 20, 200[2]. With those radiographic findings, DR. SWEET knew or should have known of the probability that the infant was experiencing a potentially fatal bowel obstruction. However, DR. SWEET ignored the obvious signs and symptoms of a bowel obstruction and failed to reach a tentative or working diagnosis of Samuel Freeman’s medical problem. Instead, DR. SWEET merely recorded in the chart a symptom, ‘abdominal distention’ and discharged the infant with no diagnostic work up or treatment.
“6. On the morning of December 22, 2002, CAROLYN FREEMAN brought Samuel back to the Jackson Hospital Emergency Room. Samuel Freeman had been continually crying and eating poorly, and his abdomen remained distended [828]*828since his discharge two days earlier. Samuel Freeman was examined by Dr. Richard Doyan who performed a physical examination and found the infant’s severely distended abdomen and a left-sided inguinal hernia. Dr. Doyan noted that the infant appeared ill and dehydrated with a sunken anterior fontanel. Dr. Doyan ordered a complete blood count (‘CBC’), and blood chemistry profile and additional abdominal x-rays. The x-rays were interpreted as follows: ‘Films are consistent with bowel obstruction as described on December 20, 2002, with further increase in abdominal distention from the comparison study.’ Dr. Doyan determined that Samuel Freeman was suffering from ‘acute severe small bowel obstruction and left inguinal hernia’ and ordered the infant to be transferred to Children’s Hospital in Birmingham, Alabama (‘Children’s’), for emergency surgery to correct the small bowel obstruction.
“7. Samuel Freeman was transported to Children’s in Birmingham via Haynes Ambulance. Approximately ten minutes before reaching the Children’s Hospital’s emergency room, the infant suffered from cardiopulmonary arrest and died.
“8. An autopsy was performed at Children’s Hospital. The cause of death was listed as ‘midgut volvulus with strangulation obstruction, marked dilatation and hemorrhagic infarction of the jejunum and ileum.’
“Count One
“9. Plaintiff re-alleges paragraphs 1-8 above as if stated herein.
“10. DR. SWEET, JACKSON, AND FICTITIOUS DEFENDANTS LISTED HEREIN, negligently and/or wantonly breached the acceptable standards of practice in providing medical services to Samuel Freeman by: (a) failing to perform a proper physical examination on December 20, 2002; (b) failing to obtain a proper history of the infant’s medical history; (c) failing to timely assess, diagnose and treat Samuel’s bowel obstruction and (d) failing to call for an immediate consult with a surgeon or other specialist.
“11. The Plaintiff alleges that the negligent conduct of the defendants, including the fictitious party defendants, combined and concurred to proximately cause Samuel’s death.
“12. The Plaintiff requests that the jury selected to hear this case render a verdict for the Plaintiff and against the Defendants in accordance with the gravity of the wrong committed by the Defendants in this case, and that it award damages to plaintiff in an amount which will adequately reflect the enormity of the defendants’ wrong in causing the death of plaintiffs decedent and which will effectively prevent other similarly caused deaths. Further, plaintiff requests that the Court enter judgment consistent with the verdict, and that it also award plaintiff interest from the date of judgment and the costs incurred by the Court in managing this lawsuit.
“Count Tim
“13. Plaintiff re-alleges paragraphs 1-12 as if fully set out herein.
“14. Jackson had a duty to insure that the physicians treating patients in its emergency room were properly trained, monitored, supervised and credentialed. Jackson failed to properly train, monitor, and supervise Dr. Sweet and allowed him to practice emergency medicine when he was not fit for such activities.
“15. Jackson had a duty to insure that it scheduled and provided a sufficient number of physicians and nurses to work in its emergency department so [829]

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Bluebook (online)
3 So. 3d 825, 2008 Ala. LEXIS 130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weber-v-freeman-ala-2008.