Steven Alan Kraselsky, personel representative of the estate of Marcia Kraselsky v. David Calderwood, M.D., and Huntsville Clinic, Inc. , 166 So. 3d 115 ( 2014 )

REL: 10/17/2014
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2014-2015
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Steven Alan Kraselsky, personal representative of the estate
of Marcia Kraselsky, deceased
v.
David Calderwood, M.D., and Huntsville Clinic, Inc.
Appeal from Madison Circuit Court
(CV-12-900795)
STUART, Justice.
Steven Alan Kraselsky ("Steven"), personal representative
of the estate of his deceased mother Marcia Kraselsky
("Marcia"), sued David Calderwood, M.D., and Dr. Calderwood's
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employer, Huntsville Clinic, Inc., in the Madison Circuit
Court, alleging that Dr. Calderwood committed medical
malpractice while treating Marcia following her admittance to
Huntsville Hospital in July 2010 and that his alleged act of
malpractice caused her already poor health to decline further
and ultimately led to her death. The trial court entered a
summary judgment in favor of Dr. Calderwood and Huntsville
Clinic, and Steven appeals that judgment. We affirm.
I.
On July 1, 2010, Marcia, who was 80 years old at the
time, fell and sustained a compression fracture to the T12
vertebra in her spine. She was admitted to Huntsville
Hospital and, following some initial treatment, was thereafter
discharged and sent to the local HealthSouth Rehabilitation
Hospital for further treatment and therapy. However, sometime
after being admitted to HealthSouth, she went into full
cardiopulmonary arrest and had to be resuscitated. On July
12, 2010, Marcia was readmitted to Huntsville Hospital with
extensive pulmonary emboli in both lungs, as well as excess
fluid in the chest cavity and multiple rib fractures as a
result of the resuscitation efforts. She was later determined
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to have gastrointestinal bleeding and congestive heart failure
as well.
At Huntsville Hospital, Marcia was treated by Dr.
Calderwood, who had been her primary-care physician since 2006
and who had seen her approximately 27 times before this
hospitalization, and by Dr. Misbahuddin Siddiqui, a pulmonary
and critical-care specialist. Over the course of the next
week, Marcia experienced pain in her lungs, ribs, back, and
shoulder; however, her breathing did improve to some extent,
although pain still made deep breathing difficult and she
still experienced some shortness of breath. On July 19, 2010,
Marcia was experiencing pain that was sufficiently severe
that, Dr. Calderwood subsequently testified in a deposition,
"she was begging for something for pain." Since being
admitted on July 12, Marcia had been taking Norco, a pain
medication that is a combination of hydrocodone and
acetaminophen, orally and had been receiving morphine
intravenously as well; however, Dr. Calderwood had
discontinued the Norco on July 15, 2010, because Marcia was
having difficulty swallowing.
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During her previous consultations with Dr. Calderwood,
and upon being admitted to Huntsville Hospital, Marcia had
indicated that she was allergic to over 20 medications,
including pain medications such as Darvon and Darvocet
(propoxyphene), Motrin (ibuprofen), codeine, Dilaudid
(hydromorphone), Vicodin (hydrocodone and acetaminophen),
morphine, and Demerol (pethidine). Marcia in fact had been
given a red arm band to wear while at Huntsville Hospital to
alert hospital personnel that she had multiple allergies.
However, in spite of her claimed allergies, Marcia had been
given both morphine and Norco –– which contains the same
active ingredients as Vicodin –– throughout her July 2010
hospitalizations without any apparent allergic reactions.
Accordingly, after visiting with Marcia on the morning of
July 19, Dr. Calderwood ordered that she be given 6.25
milligrams of Demerol intravenously every six hours.1 When a
1
Dr. Calderwood has stated in an affidavit that he
discussed Marcia's alleged Demerol allergy with her during
that July 19 visit and that she explained that she got a
headache when taking Demerol in the past. He concluded that
the headache was no more than a side effect and not
symptomatic of a true allergy. He also stated that Marcia
consented to receiving Demerol at that time. Dr. Siddiqui
testified that he had a similar conversation with Marcia about
her claimed allergies when she was admitted and that he had
also concluded that the headaches and nausea she associated
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nurse subsequently reviewed the order, she recognized that
Demerol was a listed allergen on Marcia's chart, and she
accordingly contacted Dr. Calderwood to remind him of that
fact and to verify his orders. Dr. Calderwood did in fact
confirm the order, and hospital records associated with the
order indicate that "M.D. is aware of allergy." The nurse
administered Demerol to Marcia at approximately 5:20 p.m.
Prior to receiving the Demerol, Marcia's vital signs had
been taken at 3:30 p.m. and were relatively normal –– a
respiration rate of 20, pulse rate of 85, and oxygen-
saturation rate of 96%. When her vital signs were taken again
at approximately 8:00 p.m., her respiration rate had increased
to 44, her pulse rate was up to 118, and her oxygen-saturation
rate was only 86%. She was accordingly moved to the
intensive-care unit, where she subsequently went into
cardiopulmonary arrest and was resuscitated after her family
rescinded a previous do-not-resuscitate order. The family
later agreed to reinstate the do-not-resuscitate order, and
Marcia died on July 22, 2010.
with Demerol and morphine were not true allergic reactions.
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On June 15, 2012, Steven initiated a medical-malpractice
action against Huntsville Hospital, Dr. Calderwood, and
Huntsville Clinic, alleging that they had breached "the
standard of care in causing or allowing [Demerol] to be given
to [Marcia] in light of her condition and her sensitivity to
this medication." Steven thereafter voluntarily dismissed his
claim against Huntsville Hospital, and, following a period of
discovery, Dr. Calderwood and Huntsville Clinic moved for a
summary judgment in their favor, arguing that Steven had not
identified substantial evidence indicating that Dr. Calderwood
either breached the applicable standard of care or that any
such breach proximately caused Marcia's death. Steven opposed
the motion, and, on April 30, 2014, after conducting a
hearing, the trial court granted Dr. Calderwood and Huntsville
Clinic's motion and entered a summary judgment in their favor.
On May 16, 2014, Steven filed his notice of appeal to this
Court.
II.
We review a summary judgment pursuant to the following
standard:
"This Court's review of a summary judgment is de
novo. Williams v. State Farm Mut. Auto. Ins. Co.,
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886 So. 2d 72, 74 (Ala. 2003). We apply the same
standard of review as the trial court applied.
Specifically, we must determine whether the movant
has made a prima facie showing that no genuine issue
of material fact exists and that the movant is
entitled to a judgment as a matter of law. Rule
56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of
Alabama v. Hodurski, 899 So. 2d 949, 952-53 (Ala.
2004). In making such a determination, we must
review the evidence in the light most favorable to
the nonmovant. Wilson v. Brown, 496 So. 2d 756, 758
(Ala. 1986). Once the movant makes a prima facie
showing that there is no genuine issue of material
fact, the burden then shifts to the nonmovant to
produce 'substantial evidence' as to the existence
of a genuine issue of material fact. Bass v.
SouthTrust Bank of Baldwin County, 538 So. 2d 794,
797-98 (Ala. 1989); Ala. Code 1975, § 12-21-12."
Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39
(Ala. 2004).
III.
To prevail in a medical-malpractice action under the
Alabama Medical Liability Act ("AMLA"), § 6–5–480 et seq. and
§ 6–5–541 et seq., Ala. Code 1975, a plaintiff must establish
1) the appropriate standard of care, 2) that the defendant
health-care provider breached that standard of care, and 3) a
proximate causal connection between the health-care provider's
alleged breach and the identified injury. Morgan v. Publix
Super Markets, Inc., 138 So. 3d 982, 986 (Ala. 2013). Thus,
to survive a defendant health-care provider's summary-judgment
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motion alleging the absence of substantial evidence that would
establish any one of these three items, the plaintiff must
submit –– or identify in the existing record –– substantial
evidence that would in fact establish the challenged item or
items. In the instant case, Dr. Calderwood and Huntsville
Clinic alleged in their summary-judgment motion that there was
not substantial evidence indicating (1) that Dr. Calderwood
had breached the applicable standard of care or (2) that any
such breach proximately caused Marcia's death. After
reviewing the evidence submitted by Steven and the record as
a whole, we agree that there is a lack of substantial evidence
indicating that the alleged breach of the standard of care
committed by Dr. Calderwood –– ordering Demerol to be
administered to Marcia, who had listed it as a medication she
was allergic to –– proximately caused her health to decline
and, ultimately, her death.2
2
Our holding that there is a lack of substantial evidence
of proximate causation obviates the need to consider the
sufficiency of the evidence on the issue whether Dr.
Calderwood in fact breached the standard of care. Our
proximate-causation analysis will assume that Steven did
adduce substantial evidence of a breach of the standard of
care; however, because it is ultimately unnecessary for us to
make a conclusion in that regard, we express no opinion on
that issue.
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With regard to proximate causation in an AMLA case, this
Court has stated that "the plaintiff must prove, through
expert medical testimony, that the alleged negligence probably
caused, rather than only possibly caused, the plaintiff's
injury." University of Alabama Health Servs. Found. v. Bush,
638 So. 2d 794, 802 (Ala. 1994) (emphasis added). See also
Bradford v. McGee, 534 So. 2d 1076, 1079 (Ala. 1988) ("[T]he
plaintiff [in a medical-malpractice action] must adduce some
evidence indicating that the alleged negligence (the breach of
the appropriate standard of care) probably caused the injury.
A mere possibility is insufficient."). In this case, Steven
has not retained his own expert to testify regarding
causation; rather, he argues that the deposition testimony of
Dr. Siddiqui is sufficient to establish that Dr. Calderwood's
order that Marcia be administered Demerol proximately caused
the decline in her health leading to her death. When
questioned by Steven's attorney during his deposition, Dr.
Siddiqui testified as follows:
"Q. Do you see a correlation between the timing of
the Demerol and [Marcia's] breathing problem or
her cardiopulmonary arrest?
"A. Usually you would expect it to be much sooner
because it was a quick onset drug and it was
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given [in an] IV. You usually do not see it
that late.
"Q. So you don't think there was any relationship?
"A. Usually we see it much earlier. I'm not sure
that it –– I cannot say for certain that it did
not, 100%, had no impact on her breathing
whatsoever. But it's just too late of a
reaction. Usually with IV administration we
see [it] much sooner than what we did in this
case.
"Q. Is there anything else you can point to as the
likely cause of her going into a code ... right
after the Demerol had been administered.
"A. In my judgment the patient was crucially ill
throughout this hospitalization. She came in
with an arrest. She came in with breathing
difficulties. And I actually had talked to the
family and the patient upon admission given her
presentation that the prognosis is going to be
poor. And I'm not sure that, you know, that ––
how much Demerol contributed, but she was
seriously ill with poor prognosis.
"....
"Q. So with a patient having those comorbidities or
these serious problems [pulmonary emboli and
congestive heart failure], would the addition
of the Demerol be a contributing factor in your
opinion to her respiratory problems in all
likelihood?
"....
"A. Yes, certainly an excessive dose of any
medication in her case would act as a
suppressant. But from what my understanding
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is, ... she received a small dose and the
reaction was much delayed.
"Q. Can you point us to any evidence that would
lead you to conclude as her attending physician
for the lung situation that she would have gone
ahead and had this cardiopulmonary arrest on
June 19th even if she hadn't been given the
Demerol?
"A. Probably?
"Q. You think that probably would have happened at
the same time without the Demerol?
"A. I cannot, to be honest, correlate the two. But
it was high probability that she would have
arrest again, and it was discussed with the
family and her. ... I think, yes, there was a
high probability it would have happened again.
"Q. Without the administration of any Demerol or an
allergic medication for pain?
"A. Yes, sir.
"Q. So it sounds to me as though you are excluding
any possible relationship of the administration
of the 6.25 milligrams of Demerol and her
arrest, respiratory problem?
"A. I am not. What I would say is that I –– again,
I'm not –– I wasn't there when it happened. I
did not examine her that night. But she had
the high probability of cardiac arrest even
without getting anything. Certainly any drug
that you will administer that will have impact
on slowing the patient's breathing down can
also act as a factor. But she –– was that the
primary thing that led to the arrest, in my
judgment I do not think so.
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"Q. If not primary, could it have played a
causative role, though, to some degree, so that
it adversely affected what was already in
place?
"A. It is possible.
"Q. Possible or probable or certain?
"A. Possible.
"Q. Did you discuss that with the family after the
Demerol questions they raised?
"A. I remember doing so, yes.
"Q. That there was a possible connection between
the Demerol and her breathing problem that went
on to the coma?
"A. Yes. They were very concerned about the
Demerol. And, if I remember correctly, my
statement was the same that, yes, she did
receive it. She was ask –– she was hurting,
she was asking for pain medicines. And I think
I mentioned it to them –– I actually remember
very clearly saying that I do not think that
was the primary reason of her arrest.
"Q. What do you think was the primary reason for
the arrest that went on to the coma and then
her death?
"A. I think the amount of embolus burden, emboli
burden that she had in her lungs probably has
to do more with it. She had quite a bit of
clot burden. All the emboli that she had, they
were bilateral and they put a strain on her
heart. And that's why she had gone into the
initial arrest, primary arrest, when she came
in."
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Dr. Calderwood and Huntsville Clinic's attorney subsequently
questioned Dr. Siddiqui as well:
"Q. I'm going to hand you [Marcia's] death
certificate .... Is that the death
certificate that you filled out?
"A. That's correct.
"....
"Q. And you indicated that the primary cause of
death was what?
"A. Cardiopulmonary arrest.
"Q. Secondary to?
"A. Patient had pulmonary embolism and respiratory
failure.
"Q. Did you list any other contributing causes to
her death?
"A. Sepsis, [gastrointestinal] bleeding.
"Q. And do you feel that sepsis did contribute to
cause her death?
"A. As a contributor, yes, to comorbidities.
"Q. You didn't list an allergic medication reaction
as being in any way responsible for her death?
"A. I did not list that.
"....
"Q. And did you find any evidence in the hospital
chart that she suffered a true anaphylactic or
allergic reaction?
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"A. I did not find any such documentation.
"Q. You feel that the cause of her respiratory
decline that occurred was the embolus burden in
her lungs which was placing a strain on her
heart?
"A. Primarily, yes."
Steven's attorney then had a few final questions for Dr.
Siddiqui:
"Q. Doctor, with the primary cause of the embolus
burden placing a strain on her heart, a patient
who is reportedly allergic to Demerol would be
adversely affected by getting that on top of
that burden, wouldn't she?
"A. She can be.
"Q. And wasn't she? As you can see in this chart
and putting that on top of that burden was a
problem and sent her over the edge, so to
speak, or into the arrest?
"A. I can see that it can contribute.
"Q. I mean, you're familiar with the term 'tipping
point' aren't you?
"A. Yes.
"Q. I don't know that that's a medical term. Is it
a medical term?
"A. No, sir.
"Q. But when we look at the temporal nature of her
situation in the hospital in July of 2010, the
tipping point appears to have occurred after
having been given Demerol, doesn't it?
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"A. It appears so."
In his brief to this Court, Steven emphasizes the final
excerpt of Dr. Siddiqui's testimony and argues that "Dr.
Siddiqui's testimony that the Demerol could adversely affect
[Marcia] and was the 'tipping point' that sent her over the
edge to her arrest and death is substantial medical evidence
on proximate cause which makes it a jury question." Steven's
brief, at p. 38. We disagree with Steven's characterization
of Dr. Siddiqui's testimony. Although keeping in mind that
our standard of review requires us to review the evidence in
the light most favorable to Steven, the nonmovant, Dow, 897
So. 2d at 1038-39, this excerpt does not indicate that
Marcia's health deteriorated as a result of being given
Demerol; rather, it indicates only that Marcia's health
deteriorated after she was given Demerol. However, the
sequence of events in this case is undisputed, and what Steven
needs to defeat Dr. Calderwood and Huntsville Clinic's
summary-judgment motion is not additional evidence supporting
that time line but some evidence indicating that the
administration of Demerol probably –– not possibly –- caused
the decline in Marcia's health. Even if we were inclined to
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interpret the discussion of the "tipping point" in the manner
urged by Steven, it is clear from the entirety of Dr.
Siddiqui's testimony that he did not consider Demerol to have
proximately caused the decline in Marcia's health leading to
her death. Indeed, when specifically asked if it was
"possible," "probable," or "certain" that Demerol had a
"causative role" in Marcia's death, Dr. Siddiqui was
comfortable stating only that it was possible. In Giles v.
Brookwood Health Services, Inc., 5 So. 3d 533, 550 (Ala.
2008), this Court cautioned against the practice of relying on
isolated excerpts from deposition testimony to argue in favor
of a proposition the testimony as a whole does not support,
stating:
"[T]he testimony of [the plaintiff's] medical expert
is not sufficient to satisfy [the plaintiff's]
burden of producing substantial evidence
demonstrating the existence of a genuine issue of
material fact as to her medical-malpractice claims
.... Even if portions of her expert's testimony
could be said to be sufficient to defeat a
summary-judgment motion when viewed 'abstractly,
independently, and separately from the balance of
his testimony,' 'we are not to view testimony so
abstractly.' Hines v. Armbrester, 477 So. 2d 302,
304 (Ala. 1985). See also Malone v. Daugherty, 453
So. 2d 721, 723–24 (Ala. 1984). Rather, as this
Court stated in Hines:
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"'We are to view the [expert] testimony as
a whole, and, so viewing it, determine if
the testimony is sufficient to create a
reasonable inference of the fact the
plaintiff seeks to prove. In other words,
can we say, considering the entire
testimony of the plaintiff's expert, that
an inference that the defendant doctor had
acted contrary to recognized standards of
professional care was created?'
"477 So. 2d at 304–05; see also Pruitt v. Zeiger,
590 So. 2d 236, 239 (Ala. 1991) (quoting Hines, 477
So. 2d at 304–05).
"Similarly, in Malone v. Daugherty, supra,
another medical-malpractice case, we noted that a
portion of the plaintiff's medical expert's
testimony in that case,
"'when viewed abstractly, independently,
and separately from the balance of his
sworn statement, would appear sufficient to
defeat the [defendant's] motion for summary
judgment. But our review of the evidence
cannot be so limited. The test is whether
[the plaintiff's medical expert's]
testimony, when viewed as a whole, was
sufficient to create a reasonable inference
of the fact Plaintiff sought to prove.
That is to say, could a jury, as the finder
of fact, reasonably infer from this medical
expert's testimony, or any part thereof
when viewed against the whole, that the
defendant doctor had acted contrary to the
recognized standards of professional care
in the instant case.
"'Thus, in applying this test, we must
examine the expert witness's testimony as
a whole.'
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"453 So. 2d at 723; see also Downey v. Mobile
Infirmary Med. Ctr., 662 So. 2d 1152, 1154 (Ala.
1995) (noting that portions of a medical expert's
testimony must be viewed in the context of the
expert's testimony as a whole); Pendarvis v.
Pennington, 521 So. 2d 969, 970 (Ala. 1988) ('[W]e
are bound to consider the expert testimony as a
whole.')."
It is clear, when examining Dr. Siddiqui's testimony as
a whole, that he did not consider Demerol to have probably
caused the decline in Marcia's health leading to her death.
There is no other evidence in the record from which a jury
could reasonably infer that fact either. Because such
evidence is lacking, and because proximate causation is an
essential element of Steven's medical-malpractice claim
against Dr. Calderwood and Huntsville Clinic, their summary-
judgment motion was due to be granted, and the trial court
acted properly in doing so.
IV.
Steven sued Dr. Calderwood and Dr. Calderwood's employer,
Huntsville Clinic, alleging that Marcia died as a result of
Dr. Calderwood's order that Marcia be given Demerol in spite
of the fact that Dr. Calderwood knew she had previously
professed to having an allergy to Demerol. The trial court
thereafter entered a summary judgment in favor of Dr.
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Calderwood and Huntsville Clinic, and Steven appealed that
judgment to this Court. Assuming, arguendo, that Dr.
Calderwood breached the standard of care by ordering that
Demerol be administered to Marcia, and, noting again that Dr.
Calderwood strongly contests that fact, the summary judgment
entered by the trial court is nevertheless due to be affirmed
because there is no evidence in the record indicating that the
administration of the Demerol to Marcia proximately caused the
decline in her health leading to her death. The judgment of
the trial court is accordingly hereby affirmed.
AFFIRMED.
Moore, C.J., and Parker, Shaw, and Wise, JJ., concur.
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