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Hutchins v. DCH Regional Medical Center2/11/2000
argued that the matters in dispute were protected by §§ 22-21-8 and 34-24-58, Ala. Code 1975, creating the so-called "quality-assurance privilege," and by the attorney-client privilege. In response, the plaintiff challenged the constitutionality of § 22-21-8.
This issue is not relevant to the plaintiff's claim against Dr. Falgout; it is relevant only to the claim against DCH. Because we have already concluded that this case is to be remanded for a new trial of the claims against DCH, we need not consider this issue. Should either party take dispute with the rulings of the trial judge on discovery matters in the course of the new trial, it will be free to seek appellate review of those rulings at the appropriate time.
V.
The plaintiff argues that the trial court erred in denying her motion for a new trial of her claims against Dr. Falgout; that motion was based on a claim of newly discovered evidence. The test trial judges apply in determining whether to grant a motion for a new trial on that basis is as follows:
"First, the party seeking a new trial must show that in spite of the exercise of due diligence, she did not discover the evidence until after the trial. Fries v. Acme White Lead & Color Works, 201 Ala. 613, 614, 79 So. 45, 46 (1918). Second, the evidence must be of such quality `as to render probable a different result on the retrial of the case.' Id." Register Propane Gas Co. v. Whatley, 688 So. 2d 225, 226 (Ala. 1996).
The question whether to grant a new trial lies within the sound discretion of the trial judge and a ruling on that question will be reversed by this Court only upon a showing of an abuse of discretion. Id.
Did the plaintiff exercise due diligence in an effort to learn of the information that she says she discovered after the trial had concluded? As Dr. Falgout points out, the plaintiff did not ask him in his deposition or through her interrogatories whether he had previously treated any patient who suffered from a betahemolytic group A strep infection. The plaintiff responds by saying that Dr. Falgout denied being aware of a number of infections that had occurred prior to his treatment of Hutchins and that were referred to in a June 1994 article in a Tuscaloosa newspaper. She argues that that article referred to one of Dr. Falgout's previous patients. The article does not list patients by name, but instead generally refers to a group of cases of infection. Dr. Falgout responded to the article by stating that when he treated Hutchins he was not aware of those previous cases of infection. The plaintiff argues that Dr. Falgout's answers to questions she put to him in her cross-examination on this issue were evasive and that in answering he played "medical word games." Based on what is before us, however, we cannot conclude that Dr. Falgout's testimony was untrue. When asked whether he had ever heard of any previous patients at DCH who suffered from such an infection, he answered that he had not, "unless they were patients." He also testified that he had never previously treated a patient "that had betahemolytic bacteremia or sepsis." Based on our review of the transcript and of the parties' arguments, we cannot conclude that Dr. Falgout's answers were untruthful, because it appears that the person discovered after the end of the trial had not been septic. Accordingly, we conclude that the trial court could have concluded that the failure to discover the existence of the former patient who had suffered an infection but had not become septic was the result of a lack of due diligence. See Pacifico v. Jackson, 562 So. 2d 174 (Ala. 1990). Thus, we conclude that it was not an abuse of discretion for the trial court to d
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