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Lifestar Response of Alabama12/3/2004
ugar with a glucometer. Once Mr. Lemuel began experiencing seizures, they should have proceeded under "the seizure protocol," involving continued oxygen therapy and the intravenous administration of diazepam or Valium.
The hospital records, introduced at the hearing, reflect that Mr. Lemuel was in grave condition when he arrived at Baptist Medical Center South on November 9 shortly after midnight. It was determined that he had experienced a hemorrhagic cardiovascular accident and was soon placed under "do not resuscitate" orders. With family permission, all life-support measures were discontinued and Mr. Lemuel was declared to be brain-dead the morning of November 10. Johnson testified that proper administration of oxygen to Mr. Lemuel upon arrival of the ambulance personnel was mandatory and that the longer he was without oxygen the greater the damage to his brain. Johnson testified: "The brain begins to suffer permanent damage within just a few minutes of being without oxygen ... so it is important that oxygen be given at high concentration levels, and we are trying to obtain a 100% oxygen to the patient to minimize that damage." According to Johnson, because Mr. Lemuel had had a cardiovascular accident and a seizure, the failure to administer oxygen and Valium by way of an IV increased the likelihood of brain damage. Johnson characterized the care provided by the Lifestar personnel as "more of the type of care that would have been given back in the 60's when the funeral homes ran the EMS services. They basically arrived on the scene, put you in a bag and carried you, and no care was given."
At the conclusion of the May 28 hearing, Judge Price made the express finding "that the conduct of Care Ambulance and its employees was gross negligence of the worst kind" and that their "egregious conduct" warranted a punitive-damages award of $5,000,000.
Considering all of the information available to Judge Price at the time of the subsequent July 22 hearing, we cannot conclude that he exceeded his discretion in determining that Lifestar, separate from Care, had failed to show that it had a meritorious defense. Lifestar argues in its brief, "Notably absent from the testimony of either of these ladies [at the May 28 hearing] is the fact that Montgomery Fire Department Fire Medics were on the scene and actually administered the medical treatment to Mr. Lemuel." (Lifestar's brief, p. 14.) We can only comment that notably absent from the record in this case is any evidentiary corroboration for that assumption. Whatever weight Judge Price should have given the inferences Bryan drew from the records concerning the presence of Montgomery Fire Department medics, Judge Price was at liberty to find that information rebutted and overcome by the testimony of Ms. Lemuel and Ms. McDonald.
Lifestar also argues in its principal brief that " second meritorious defense is the insufficiency of service of process on Care." (Lifestar's brief, p. 35.) Insufficiency of service, while relevant to a claim that a default judgment is void for want of jurisdiction, is not relevant to an assertion of the existence of a meritorious defense, i.e., a plausible defense on the merits that "would constitute a complete defense to the action" if proven at trial, or otherwise "warrants submission of the case to the jury." Kirtland, 524 So. 2d at 605-06.
1. Whether the plaintiff will be unfairly prejudiced if the default judgment is set aside.
In Phillips, supra, we recognized that we had not previously "specifically addressed the question of who, in a motion to set aside a default judgment, has the burden of showing that the plaintiff would not be unfairly prejudiced if the motion is gra
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