Campbell v. Williams

"This case resulted from the death of Plaintiff's deceased, Ms. Willie Mae Sumpter. On March 9, 1987, while Ms. Sumpter was employed at Gulf States Steel in Gadsden, she suffered second and third degree burns about her face. Molten steel had spewed forth from an ingot mold and struck Ms. Sumpter. She was brought to the emergency room of the Holy Name of Jesus Hospital in Gadsden, where she was examined by an emergency room physician who reported her condition to the Defendant Dr. John H. Campbell. Dr. Campbell admitted her to the hospital as his patient. Dr. Campbell treated Ms. Sumpter for her burns and monitored her condition. Within a few hours of her admission, Ms. Sumpter's face had become swollen to the point where her eyes were swollen shut and the inside of her mouth was not accessible to examination. Ms. Sumpter was not intubated or examined by use of a fiber-optic bronchoscope.

"In the early morning of March 10, 1987, Ms. Sumpter began experiencing respiratory distress and suffered respiratory failure due to the closing off of her airway. Following unsuccessful attempts by technicians to regain her airway by intubation, Dr. Campbell, who had been called by the attending nurse, arrived and performed an emergency tracheostomy which restored Ms. Sumpter's airway. However, Ms. Sumpter's respiratory failure resulted in her lapsing into a coma from which she never recovered. Ms. Sumpter died on April 15, 1987.

"The plaintiff's negligence claim against Dr. Campbell involved his failure to transfer Ms. Sumpter to the burn unit at U.A.B. [the hospital of the University of Alabama at Birmingham]; a course of action required by the Holy Name of Jesus Hospital's protocol for the treatment of major burns patients. The plaintiff's additional claim involved Dr. Campbell's failure to protect Ms. Sumpter's airway by intubation or to examine her upper airway by use of a fiber-optic bronchoscope. The Plaintiff further alleged at trial that Dr. Campbell attempted to conceal certain aspects of Ms. Sumpter's condition by requesting another physician to change that physician's notes and also by preparing a summary which detailed events which did not exist.

"Testimony at trial indicated that Dr. Campbell had another physician, Dr. Richard Gallo, change Dr. Gallo's records from a notation that Ms. Sumpter's respiratory failure occurred following a gradual closing of her airway, to a notation which indicated that her respiratory failure occurred suddenly. Dr. Campbell's summary of Ms. Sumpter's treatment included the notation that Ms. Sumpter had experienced a sudden coughing spell just before her respiratory failure and that he felt that she suffered airway blockage due to the presence of a mucus plug. The nurse who was with Ms. Sumpter when she began to experience respiratory distress, testified that there was no coughing spell.

"Upon Ms. Sumpter's respiratory distress, described as 'crowing' or fighting for breath, the attending nurse, Carol Fragnoli, contacted Dr. Campbell by telephone and Dr. Campbell ordered an immediate intubation. Attempts at intubation failed due to Ms. Sumpter's swelling and when this was reported to Dr. Campbell, he ordered nurse Fragnoli to send out an emergency code for any physician in the hospital to come and perform an emergency tracheostomy. In response to the emergency code, nurse Fragnoli testified that Dr. [Wilfredo Grana] came from the hospital's emergency room and was advised ofPage 807Dr. Campbell's order for a tracheostomy, whereupon, according to nurse Fragnoli, Dr. Grana stated that he was not capable of performing a tracheostomy. Dr. Campbell, who had been en route to the hospital as soon as he was contacted, then entered Ms. Sumpter's room and performed the tracheostomy. Dr. Grana was added as a Defendant based upon his alleged involvement.

"Dr. Campbell denied any negligence in his treatment of Ms. Sumpter. Specifically, Dr. Campbell testified that based upon the emergency room examination as reported to him, there was no need to transfer Ms. Sumpter to U.A.B. He further testified that he had successfully treated many burn patients locally and had in this case followed the course of treatment called for under the circumstances. Dr. Campbell testified that nothing about Ms. Sumpter's condition mandated intubation or merited the risks inherent with intubation or fiber-optic bronchoscopy. Dr. Campbell's testimony presented several factors which indicated that Ms. Sumpter's airway was not closing off before her sudden respiratory failure. Dr. Campbell's position was fully supported by the expert testimony of Dr. William Wood, who, himself, had trained and worked at the U.A.B. burn unit.

"Dr. Campbell's course of treatment was attacked by burn experts, Dr. Robert Demling and Dr. Alan Dimick, head of the U.A.B. burn unit.

"Dr. Grana's testimony was that he did not refuse to perform a tracheostomy and that, indeed, he was not even present on the occasion of Ms. Sumpter's respiratory failure.

"Following all of the testimony in the case and while the Jury was deliberating, Counsel for Dr. Campbell advised the Court on the record and in the presence of all parties, that they had reason to believe that the Plaintiff and Defendant Holy Name of Jesus Hospital had entered into a pro tanto settlement and requested that the Court order those Defendants to reveal such settlement and make its terms known to the Jury. The Court noted that no pro tanto settlement had been presented to the Court and thus refused to order the Plaintiff and Defendant Hospital to reveal any agreement they might have reached.

"The Jury returned a verdict in favor of Dr. Grana but found against the hospital and Dr. Campbell and assessed damages in the amount of $4,000,000.00."

"[W]hen the death of a person is unlawfully caused by another, the personal representative of the deceased may maintain an action against the latter at any time within two years thereafter, and may recover such sum as the jury deem just, and the amount so recovered, shall be distributed as personal property of an intestate is now distributed, and shall not be subject to the payment of the debts of the deceased."

"That the right of action hereby given shall survive against the personal representative of the person unlawfully causing the death as aforesaid."

"Commenting on the act 'to prevent homicides' of February 5, 1872, Pamph. Acts 83, we inSavannah and Memphis Railroad Company v. Shearer, said, in effect, that the purpose and result of the suit therein provided were not a mere solatium to the wounded feelings of surviving relations, nor compensation for the lost earnings of the slain. We think the statute has a wider air and scope. It is punitive in its purposes. Punitive of the person or corporation by which the wrong is done, to stimulate diligence and to check violence, in order thereby to give greater security to human life; 'to prevent homicides.' And it is none the less punitive because of the direction the statute gives to the damages recovered. The damages, 'tis true, go to the estate of the party slain, and in effect, are compensatory; but this does not change the great purpose of the statute — 'to prevent homicides.' Preservation of life — prevention of its destruction by the wrongful acts or omission of another, — is the subject of the statute; and all its provisions are but machinery for carrying it into effect.

"The language of the statute is, 'when the death of a person is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action.' This statute contains no qualifying clauses, limiting its remedial provisions to any class or classes of persons, or excluding any class from its wholesome terms. It employs the word person in its broadest sense, and it would seem that every being falling within that general designation may take shelter under its protecting wings."

"Action for wrongful act, omission, or negligence causing death. A personal representative may maintain an action, and recover such damages as the jury may assess, for the wrongful act, omission, or negligence of any person or persons, or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused, if the testator or intestate could have maintained any actionPage 809for such wrongful act, omission, or negligence, if it had not caused death; such action shall not abate by the death of the defendant, but may be revived against his personal representative; and may be maintained, though there has not been prosecution, or conviction or acquittal of the defendant for such wrongful act, or omission or negligence; and the damages recovered are not subject to the payment of the debts or liabilities of the testator or intestate, but must be distributed according to the statute of distribution. Such action must be brought within two years from and after the death of the testator or intestate."

"The damages recoverable being punitive and exemplary in all cases under the statute — punitive of the act done and intended by their imposition to stand as an example to deter others from the commission of mortal wrongs or to incite to diligence in the avoidance of fatal casualties — the purpose being the preservation of human life regardless of the pecuniary value of a particular life to next of kin under statutes of distributions, the admeasurement of the recovery must be by reference alone, to the quality of the wrongful act or omission, the degree of culpability involved in the doing of the act or in the omission to act as required by the dictates of care and prudence, and without any reference to, or consideration of the loss or injury the act or omission may occasion to the living. Such is the construction given by this court to the act 'to prevent homicide' and as thus construed, it is manifest that the charge set out above is a sound exposition of the elements and measure of damages recoverable under the act unless there has been such modification of the statute in its recent codification as necessitates a different interpretation, or unless the act as thus construed is violative of the organic law as counsel insist."

"The act of 1872 having been, without modification in any material sense, twice re-enacted since the judicial construction we have been considering was put upon it — in the Code 1876 and again in the Code 1886 — and being with that construction a constitutional exercise of the legislative power, it is now to be considered as if the terms and provision, which have been evolved out of it and declared in concrete form by judicial interpretation, were expressly embodied in its letter. This, we think should close the door to the overruling of the cases which put that construction on it, and to the adoption of a different one."

"As interpreted by the state court, the aim of the present statute is to strike at the evil of the negligent destruction of human life by imposing liability, regardless of fault, upon those who are in some substantial measure in a position to prevent it. We cannot say that it is beyond the power of the legislature, in effecting such a change in the common law rules, to attempt to preserve human life by making homicide expensive."

"[I]n a wrongful death action filed against joint tort-feasors, a plaintiff is entitled to a single recovery that will represent the total amount of punitive damages the jury may access for the wrongful death. This total recovery assessed, in an amount determined by the jury as punishment for the homicide, cannot be apportioned among joint tort-feasors."

"The proper inquiry on a motion for a new trial based on improper or nonexistent responses tovoir direquestions is whether the response, or lack of response, resulted in probable prejudice to the movant. Not every failure of a prospective juror to respond correctly to avoir direquestion will entitle the losing party to a new trial.

"The determination of whether the complaining party was prejudiced by a juror's failure to answervoir direquestions is a matter within the discretion of the trial court and will not be reversed unless the court has abused its discretion. Some of the factors that this Court has approved for using to determine whether there was probable prejudice include: 'temporal remoteness of the matter inquired about, the ambiguity of the question propounded, the prospective juror's inadvertence or willfulness in falsifying or failing to answer, the failure of a juror to recollect, and the materiality of the matter inquired about.'"

"It is true that I was given a copy of Lillie Mae Sumpter's medical chart to review and that I had a meeting with the attorney for Dr. Campbell to discuss my thoughts on the care that was given Mrs. Sumpter. At that time I was not given any additional information which was not contained in the medical chart, nor was I told of any potential defenses or theories of defense which might be raised at trial. The conversation instead centered around my very strong opinion that the case clearly represented substandard care on the part of Dr. Campbell in his treatment of Mrs. Sumpter. Outside of being compensated for my time, I had no further meeting with Dr. Campbell's attorneys concerning this case. AtPage 814no time did I agree to participate as an expert for Dr. Campbell."

"In order for a movant to be entitled to a new trial on the ground of newly discovered evidence, the movant must demonstrate that the evidence:

" '2) could not have been discovered with the exercise of due diligence before trial;

" '4) is not merely cumulative or impeaching; and

" '5) is of such a nature that a different verdict than that already obtained probably would result if a new trial were granted.'

"The determination of whether to grant or deny a new trial is for the trial judge, and an order granting or denying a motion for new trial on the basis of newly discovered evidence will not be disturbed on appeal, unless it appears that the trial court abused its discretion.Gilmer v.Salter,285 Ala. 671,235 So.2d 813(1970)."

"MR. CROWDER [plaintiff's attorney]: Instead of this being a medical malpractice case with a prominent white doctor, and hospital here, assume that this was a — this had been a trucking accident, that a truck driver with defective brakes has been going 65 miles an hour in a rainstorm, and had rear ended Lillie Mae Sumpter, and had put her in a coma for five weeks, and then, she died.

"And assume that the insurance adjuster came out to the driver, and said, I want you to change your driving log; instead of showing on the log where you got it that you were driving in the rain for 30 minutes, I want you to change it and show that you suddenly came into this rainstorm. And then, I want you to change your driving log to show that —

"MR. ELLIOTT [attorney for one of the defendants]: Excuse me, Mr. Crowder —

"MR. FLORIE [attorney for the defendant Dr. Campbell]: Excuse me, Mr. Crowder, this is all repetitive — this is entirely an improper argument, we object to it, there is a different — the law is entirely different as it applies to a physician by statute, Mr. Crowder knows that. We object to it, and ask for instructions, and move for a mistrial.

"MR. CROWDER: Your honor, I'm giving them an analogy, an analogous situation. The law would be —

"MR. FLORIE: — Proper analogy, wholly improper, on the basis of everything he just said —

"MR. ELLIOTT: — inference based on facts in the case, and that alone, and that is not a legitimate inference based on the facts of this case —

"THE COURT: Gentlemen, address the bench with your remarks. Go ahead.

"MR. ELLIOTT: That is not a legitimate inference from the evidence in the case, it's argumentative, prejudicial, we object to it, and we move for a mistrial.

"Ladies and gentlemen, this action is a negligence case involving the standard of care of a physician and/or a hospital, and the analogy may not be pertinent, but it is the closing argument.

"THE COURT: All right, we are out of the presence of the jury. Is there something for the record?

"MR. FLORIE: Yes, sir, on behalf of Dr. Campbell, Your Honor, immediately upon the close of Mr. Crowder's argument we would renew — reassert our motion for a mistrial, on these grounds, separately and severally.

"Mr. Crowder undertook to make an improper and illegal argument posed on anPage 816analogy as to a type of tort action for which the law in Alabama imposes an entirely different standard. The duty imposed on a doctor under the Medical Liability Act applicable to this case is a different standard, different duty, and [is] imposed by statute, entirely separate and apart upon a trucking company [sic]. He made reference by analogy to the Department of Transportation regulations, which are . . . nowise analogous or applicable to Dr. Campbell in this case. He — a blatant violation of the Court's motion in limine to reference insurance and insurance adjusters, and changing on insurance adjusters and he did in such a manner so as to make it impossible for any defendant in this case to speak in the presence of the jury without risk of overwhelming prejudice, and to address the question of insurance, Your Honor ruled on that in the motion in limine, was an intentional affront to that ruling, and we move for a mistrial.

"MR. ELLIOTT: I join in the motion, I adopt the grounds stated by Mr. Florie.

"THE COURT: Gentlemen, your motion for a mistrial is denied."

"The issue of whether to grant a mistrial generally rests within the sound discretion of the trial court. The reason for the rule is well advanced inBurnett v. Bledsoe,276 Ala. 139,159 So.2d 841(1964), where the Court explained:

" 'The cases where insurance is mentioned in civil actions during the trial are numerous but the determining factor is whether or not a remark concerning insurance is prejudicial. The governing rule with reference to all remarks of counsel before the jury is thus stated inBirmingham Electric Co. v. Perkins,249 Ala. 426,430,31 So.2d 640,642:

" ' "The trial court was present and was an eyewitness to all of the proceedings and in overruling the defendant's motions in effect found that the remarks were not prejudicial to the defendant. Therefore the action of the trial court in denying the motions for mistrial and in overruling the motions for new trials will not be disturbed by this court unless it affirmatively appears from the entire record that the statements involved were [probably] prejudicial. . . .' "

"A review of the instances in which liability insurance was injected into a civil case discloses that the trial court's focus is upon prejudice,i.e., was the defendant prejudiced to such an extent that the improper influence of the subject of insurance was ineradicable from the minds of the jurors?"

"In reversing a denial of a new trial, this Court has stated: '[W]ith reference to an argument made by counselemphasizing the existence ofinsurance carried by his opponent covering thetransaction, this Court has taken the position that the influence is ineradicable.'Thorne v. Parrish,265 Ala. 193,195,90 So.2d 781,783(1956) (citations omitted). The principle that reference to indemnification or insurance of an opposing party is highly prejudicial and grounds for a mistrial or a new trial is firmly established."

"As to the involvement of Dr. Campbell in a possible cover-up or concealment, the Court must disagree with Dr. Campbell's assertion that there was no evidence presented of such cover-up or concealment. Evidence was presented that Dr. Campbell asked another physician, Dr. Richard Gallo, to correct Dr. Gallo's notes which had indicated that Ms. Sumpter suffered a gradual closing-off of her airway. Dr. Campbell asked Dr. Gallo to change the notation so as to reflect that Ms. Sumpter suffered a sudden onset of the closing-off of her airway. [R.T. 959-61.] Additionally, Dr. Campbell's written report stated that Ms. Sumpter had respiratory arrest following a coughing spell. This was in contrast to the testimony of the nurse on duty who denied any coughing spell. [R.T. 106-08.] While this evidence may not indicate an attempt to conceal facts about Ms. Sumpter's treatment, this Court cannot with assurance say that the jury did not consider that concealment existed and punished accordingly."

"Because the purpose of punitive damages is not to compensate the plaintiff but to punish the wrongdoer and to deter the wrongdoer and others from committingPage 818similar wrongs in the future, the proper amount of punitive damages rests largely within the jury's discretion. However, although punitive damages need bear no particular relationship to actual damages, they, nonetheless, must not exceed an amount that will accomplish society's goals of punishment and deterrence.Green Oil Co. v.Hornsby, supra."