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Ross v. Marion

Supreme Court of Alabama

November 6, 2015, Released

1140604, 1140605, 1140606


 [*251]  MOORE, Chief Justice.

Anita Marion ("Marion") sued Noland Hospital Birmingham, LLC, and Noland Health Services, Inc. (hereinafter referred to collectively as "Noland"), Walter R. Ross, Jr., M.D., and Bernis Simmons, M.D., in the Jefferson Circuit Court seeking damages resulting from the death of her husband, Arthur Marion ("Arthur"). Following a trial, the jury returned a verdict in favor of Dr. Simmons but against Dr. Ross and Noland. Dr. Ross and Noland, in cases no. 1140604 and no. 1140605, respectively, appeal from the judgments against them, and Marion, in case no. 1140606, appeals from the judgment in favor Dr. Simmons. For the reasons stated herein, we reverse the judgments in cases no. 1140604 and no. 1140605 and remand the cause for a new trial as to those defendants,  [*252]  and we affirm the judgment in case no. 1140606.

I. Facts and Procedural History

On February 27, 2009, Arthur underwent a kidney-stoneremoval procedure at St. Vincent's East hospital in Birmingham. Dr. Taylor Bragg performed the procedure, and [**2]  Dr. Simmons was the anesthesiologist. During the procedure, Arthur suffered a heart attack. Arthur was revived, but the heart attack caused him to suffer hypoxic encephalopathy (deprivation of oxygen to the brain), which left him in a nonresponsive state. On March 19, 2009, Arthur was transferred from St. Vincent's to Noland Hospital Birmingham and was admitted by Dr. Ross. Arthur remained at Noland Hospital until April 27, 2009, when he was transferred back to St. Vincent's to receive dialysis for renal failure. Arthur passed away on April 28, 2009.

Marion filed this wrongful-death action on February 28, 2011, against, among other defendants,1 Dr. Ross, Dr. Simmons, and Noland. Although Marion asserted various theories of liability, the essence of her claim against Dr. Simmons was that he breached the applicable standard of care by failing to position Arthur properly during his kidney-stone-removal procedure and that this breach caused Arthur's blood to be unable to circulate properly, which in turn caused Arthur's heart attack and hypoxic encephalopathy. As to her claim against Dr. Ross, Marion claimed that Dr. Ross breached the applicable standard of care by prescribing Rocephin, [**3]  an antibiotic, to treat an infection Arthur was developing. Arthur had a documented allergy to Ancef, which, like Rocephin, is in a class of antibiotics called cephalosporins. Marion alleged that Dr. Ross failed to note Arthur's allergy to Ancef and that, if Dr. Ross had noted the allergy, he would not have prescribed a cephalosporin to treat Arthur's infection. Marion also alleged that Noland breached the applicable standard of care by failing to train its nurses to check for contraindications to medications. Marion alleged that the administration of Rocephin caused Arthur to develop a severe allergic reaction known as toxic epidermal necrolysis ("TEN"). Marion alleged that TEN caused Arthur to develop sepsis, which, in turn, caused his death.

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196 So. 3d 250 *; 2015 Ala. LEXIS 144 **

Walter R. Ross, Jr., M.D. v. Anita Marion; Noland Hospital Birmingham, LLC, and Noland Health Services, Inc. v. Anita Marion;Anita Marion v. Bernis Simmons, M.D.

Subsequent History: Counsel Amended October 12, 2016.

Released for Publication August 15, 2016.

Prior History:  [**1] Appeals from Jefferson Circuit Court. (CV-2011-900717). Helen Shores Lee, Trial Judge.


trial court, new trial, questions, unanimous, cases, burden of proof, instruct a jury, jury room, judgments, mistrial, parties, jurors, notice, motions, trial judge, communications, deliberate, answered

Civil Procedure, Appeals, Standards of Review, Abuse of Discretion, Evidence, Presumptions, Particular Presumptions, Regularity, Judgments, Relief From Judgments, Motions for New Trials, Judicial Officers, Judges, Discretionary Powers, Jury Trials, Jury Instructions, General Overview, Trials, Jury Deliberations, Constitutional Law, Bill of Rights, Fundamental Rights, Trial by Jury in Civil Actions, Disqualification & Recusal, Grounds for Disqualification & Recusal, Appearance of Partiality, Appearance of Impropriety, Reviewability of Lower Court Decisions, Notice of Appeal, Preservation for Review