A Frivolous Lawsuit
The Alabama Supreme Court decided an interesting medical malpractice lawsuit last week. Here are the facts:
On August 17, 1998, Dr. Boles removed a cancerous part of Burl Herman Parris's lung at Northeast Alabama Regional Medical Center (“RMC”) in Anniston. The surgery itself went well, but Burl stayed at RMC while he recuperated. Dr. Boles continued to treat Burl while Burl was a patient at RMC.
At 4:30 a.m. on September 7, 1998, a nurse telephoned Dr. Boles at his home. She informed him that Burl had “coded,” that his respiration and pulse were weak, and that he was nonresponsive. Dr. Boles then spoke to an emergency physician who told him that Burl was anemic and was suffering from gastro-intestinal bleeding. Dr. Boles did not go to the hospital in response to these conversations. At trial, Dr. Boles admitted that this type of bleeding was a potentially fatal surgical problem.
The nurse telephoned Dr. Boles again at 6:30 a.m. to tell him that Burl's respiration, pulse, and blood pressure were at dangerous levels. Dr. Boles did not go to the hospital, and he did not order that Burl be admitted to the intensive-care unit at RMC.
At 8:15 a.m., Dr. Boles received a third telephone call, informing him that other doctors were working to save Burl's life. Dr. Boles testified that after the third call he went to the hospital, where he “look[ed] at the code.” However, no one remembered having seen him at the hospital, and no hospital record reflects that he was present. Burl died later that morning.
Randall Parris, the administrator of Burl's estate, sued Dr. Boles; Southeastern Surgical Specialists, Inc., described in the appellants' brief as “Dr. Boles'[s] professional association”; and RMC, alleging wrongful death. The case went to trial in September 2003. At trial, Dr. Boles admitted that if he had gone to the hospital when he received the second telephone call at 6:30 a.m., “I probably could have saved [Burl's] life, quite possibly saved his life.” Randall Parris offered expert testimony indicating that Burl's life could have been saved had something been done before approximately 7:30 a.m. Dr. Boles also admitted that he lived only five minutes from RMC, that he was unoccupied on the morning of Burl's death, and that he deliberately chose not to return to the hospital.
The plaintiff won this litigation lottery; the run away jury awarded him 1.3 million dollars.
The defendants did not challenge the amount. I do not know why. Surely this sickly old man’s life was not worth 1.3 million dollars. What did the doctor do that was so wrong? You can’t expect doctors to drop everything and run to the hospital just because some patient might need some help. Worst of all, we all have to pay higher insurance premiums and now foreign auto manufacturers won’t build plants in Alabama. This verdict hurts everyone. Because of one selfish dead person, we all suffer.
Anyway, the defendants did appeal, arguing that the jury should have apportioned the award according to the level of the individual defendant’s fault. Normally, when the award is one of punitive damages, as this one was, that what the jury must do. However, Alabama’s statutes explicitly and specifically except from that rule cases, like this one, of wrongful death. Undeterred by the law, the defendants argued that
the Court should disregard the plain meaning of the statute because it “conflicts with the purpose of punitive damages” and is “disharmonious with public policy.”
In an opinion written by Chief Justice Nabers, the court properly rejected the call to legislate from the bench and said: “Uh, no.”
Now then, if we want to penalize parties for filing frivolous lawsuits, who should pay whose attorney’s fees in this case?
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The Alablawg 
June 23, 2006 at 2:10 pm
[…] Wheeler reports about a ruling made by the Alabama Supreme Court. […]
June 24, 2006 at 5:04 pm
My dad is one of the people who thinks the “loser pays” system is a good idea. Seems he’s never considered that wealthy corporations or well-insured professionals would never be held accountable for negligence if that were the case.
July 5, 2006 at 1:30 pm
Frivolous??? Are you insane?
In this case, it was proven that, following surgery, Dr. Boles received a call that Mr. Parris had coded. Dr. Boles did not receive just one call, he received three, that’s right, three, separate calls. Despite receiving these calls, not only did he refuse to go to the hospital (which was only five minutes from his house), he failed to order that Parris be sent to ICU. Boles admitted that Parris likely would have survived if he had gone to the hospital even after the second call. He admitted that he deliberately chose not to return. Mr. Boles was a human being and his life was of value.
Moreover, there was expert testimony, provided by other licensed doctors, that Dr. Boles conduct (and that of the nurses and hospital) fell below the acceptable standard of care. The jury’s verdict was correct and the facts were proven by clear and convincing evidence.
The fact that you value Mr. Parris’s life at an amount less than the jury does not make it a “frivolous lawsuit.” Thank God you alone are not the final arbiter of the value of another person’s life. Indeed, I imagine you would place an equally high figure on the value of the life of your mother, father, spouse, or child.
As to the Defendants’ argument that the award should have been apportioned, that was only raised because the amount of the award attributable to RMC was reduced to $100,000 due to an ancient cap on damages against municipalities. Moreover, you failed to note the long-standing law and the State’s rationale interest in preventing wrongful deaths. You see, unlike yourself, the State actually values human life.
Finally, your argument that this award will have a detrimental effect on our insurance premiums and that it will prevent foreign companies from building plants in Alabama is simply a lie – – it’s pure propaganda. It has been proven that poor investments by insurance companies are actually the primary cause of claimed poor performance. The number one medical malpractice carrier in Alabama is a company called MASA. It’s a company owned by doctors and it is very profitable, regularly paying dividends to its shareholder. MASA does not provide any other type of coverage and has plenty of reserves to handle this judgment with no effect on its overall profitability. Indeed, MASA knows what your readers probably don’t know – that, due to unfair rules of procedure, restrictions on the discovery of evidence, and onerous jury charges under the Alabama Medical Accountability Act, it is almost impossible to win a medical malpractice lawsuit in Alabama — even where the claims are patently meritorious. Consequently, MASA refuses to settle or even discuss settlement (even those claims that are patently meritorious), knowing that it will likely win at trial. Moreover, the costs associated with bringing such claims are so high for the plaintiffs that most claims are never brought. As a result we are inadvertently protecting bad doctors.
Additionally, unless you’ve been living under a log, you would have noticed that Alabama has attracted numerous large manufactures and has actually added jobs when most other States have been losing them. Indeed, Alabama now has 263 plants in the automotive industry alone. The 124,000 direct and indirect jobs amount to close to $5 Billion in payroll in Alabama and every year we have been adding more.
I know this is a lengthy response to a trite Blog, but I am so tired of so-called tort-reformers spewing their venom and lies. To say that Dr. Boles’ conduct was okay is to say that that Doctors cannot be held accountable for the harm they cause to others even when it is proven by clear and convincing evidence that their conduct has fallen well below the standard of care in the industry. The truth is, we shouldn’t be trashing meritorious lawsuits or vilifying those who seek justice just to protect the bad acts of a bad doctor.
July 5, 2006 at 5:20 pm
um, chris, i completely agree with you. i was making fun of the tort reformers. the answer to the rhetorical question at the end is “the defendants ought to at least pay the plainiff’s appellate attorney’s fees.”
that said, i’m glad we are on the same side, your response was informed and well said.