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Breaux v. Thurston12/30/2003
Sheila Bailey Thurston filed a medical-malpractice action against Dr. Charles W. Breaux and Jefferson Clinic, P.C., a professional corporation through which a group of doctors, including Dr. Breaux, provided physicians for the staff of Cooper Green Hospital. The case was originally tried before a jury on October 18, 1999, against Dr. Breaux, the Jefferson Clinic, P.C., Cooper Green Hospital, and two surgical nurses, Cynthia Venton and Wylie King. The jury returned a $78,000 verdict against the defendants, but the trial judge, realizing he had committed an error, subsequently ordered a new trial. The defendants appealed, various ones asserting different objections to the grant of a new trial, either on jurisdictional grounds or because different relief was not granted. This Court affirmed the grant of a new trial. Breaux v. Bailey, 789 So. 2d 204 (Ala. 2000). When the case was retried on February 19, 2002, only Dr. Breaux and the Jefferson Clinic remained as defendants, Cooper Green Hospital, Venton, and King having settled the claims against them for a total of $100,000. The jury returned a verdict against Dr. Breaux and the Jefferson Clinic in the amount of $300,000. The trial court entered a judgment on the verdict and later denied the defendants' postjudgment motions for a judgment as a matter of law, a new trial, or a remittitur. Dr. Breaux and the Jefferson Clinic again appealed. We reverse and remand.
Ms. Thurston consulted Dr. Breaux in 1994 regarding weight-loss surgery. Dr. Breaux, a board-certified general surgeon and a professor at the University of Alabama at Birmingham, had many years of experience in bariatric surgery, performed to treat obesity. Ms. Thurston had a number of health problems that were compounded by her obesity. She decided to undergo a bariatric procedure known as gastric bypass. When she first consulted Dr. Breaux she weighed 283 pounds. When the bypass surgery was performed at Cooper Green Hospital a little more than eight months later, on December 21, 1994, she weighed 310 pounds. The surgical incision into Ms. Thurston's abdomen, when "opened up" by the use of retractors, created an opening approximately 8 to 10 inches wide and 10 inches long. The ensuing operation lasted two hours or slightly longer. Testimony presented at trial detailed the step-by-step features of the operation, but they are not relevant to the issues on appeal. In essence, the surgery rerouted portions of Ms. Thurston's intestines to shorten the length available for digestion and absorption, significantly reduced the size of her stomach, and reconnected her stomach to the intestine by a small opening. Dr. Breaux was assisted by Dr. Harris, a third-year resident at Cooper Green Hospital, registered nurse Cynthia Venton, functioning as the circulating nurse, and Wylie King, functioning as the scrub nurse or operating-room technician. The hospital's "Operating Room Policies and Procedures" provided, with respect to "Instrument Count," that " he purpose of an instrument count is to prevent the possibility of any foreign object being left in a body cavity." With respect to the safeguards to be employed to accomplish that purpose, the Operating Room Policies and Procedures prescribed the following procedure:
"1. All instruments are counted by [the operating-room technician] and circulating [registered nurse] together prior to operative procedure. Procedure is to count individually each ringed instrument, retractor, tissue forcep, suction, and knife handle, and record each count on count sheet.
"2. Each additional instrument given the [operating-room technician] during the procedure will be added to the count sheet.
"3. When the peritoneum is being closed, the instrumen
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