 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Houserman v. Garrett12/10/2004
Sewell v. Internal Medicine & Endoctrine Assocs., P.C., 600 So. 2d 242 (Ala. 1992). As we have noted, Dr. Houserman and Honea & Houserman, P.C., through objection and requested jury instructions, properly raised this issue below.
We find the jury charge, viewed in its entirety, to be "misleading and erroneous," and we further find that error to have "probably injuriously affected substantial rights of" Dr. Houserman and Honea & Houserman, P.C., and therefore prejudiced them. Rule 45, Ala. R. App. P.; Holly v. Huntsville Hosp., 865 So. 2d at 1188.
The judgment is reversed, and this cause is remanded to the trial court for further proceedings consistent with this opinion. The cross-appeal, having been mooted by our holding in the appeal is hereby dismissed.
1030587 --REVERSED AND REMANDED.
1030789 --APPEAL DISMISSED.
Brown, Harwood, and Stuart, JJ., concur.
See, J., concurs specially.
SEE, Justice (concurring specially).
I concur in the main opinion, and I write only to reiterate the point I made in my special writing in Breaux v. Thurston, [Ms. 1011655, December 30, 2003] __ So. 2d __, __ (Ala. 2003)(See, J., concurring specially).
A Kerlix brand gauze pad was left inside Jennifer Garrett and was discovered approximately eight months after the surgery, during exploratory surgery to locate the source of the problems Garrett had been having since the initial surgery. In Breaux, I stated that "the plaintiff must present substantial evidence indicating that the surgeon did not fully comply with all aspects of the standard of care." __ So. 2d at __. Evidence that a foreign object was left in the patient's body following a surgery establishes a prima facie case of negligence. Thereafter, the burden of going forward shifts to the defendant physician to present evidence of what the physician argues is the applicable standard of care and evidence indicating that the physician complied with all aspects of that standard of care.
If the physician offers such evidence, the ultimate burden is on the plaintiff to prove the standard of care and that the defendant did not fully comply with all aspects of that standard of care. Thus, if Dr. Virginia Houserman and Honea & Houserman, P.C., present evidence as to the standard of care and Dr. Houserman's full compliance with that standard of care, then the burden is on Garrett to present evidence sufficient to overcome Dr. Houserman and Honea & Houserman, P.C.'s evidence.
Page 1 2 3 4 5 6 Alabama Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|