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Ex parte Elba General Hospital and Nursing Home9/14/2001
PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS
Gerald H. Nelson sued Elba General Hospital and Nursing Home, Inc. ("Elba General"), alleging that, through negligence or wantonness, Elba General had caused the death of his father, Orice Nelson, who had been a patient at Elba General. After the parties had conducted discovery, the trial court entered an order, on December 1, 1999, granting Elba General's motion for summary judgment. Gerald Nelson appealed the summary judgment to the Court of Civil Appeals, which reversed the judgment and remanded the action for further proceedings. See Nelson v. Elba Gen. Hosp. & Nursing Home, Inc., [Ms. 2990524, November 17, 2000] ___ So. 2d ___ (Ala. Civ. App. 2000). We granted Elba General's petition for certiorari review. We reverse.
I. Factual Background
The opinion by the Court of Civil Appeals states the facts surrounding the death of Orice Nelson:
"Orice Nelson, age 81, was a resident of Elba General when he died. He suffered from chronic obstructive pulmonary disease, congestive heart failure, and hypertension. While Orice was a resident at Elba General, his physician ordered that he receive two liters of oxygen per minute continuously via nasal cannula. On the morning of the day Orice died, his son discovered that the oxygen concentrator providing Orice with continuous oxygen was not operating. The concentrator was promptly turned back on by a nurse employed by Elba General. Later that day, Orice's physician made preparations to readmit Orice to the hospital for treatment of pneumonia. During this time, Orice ceased breathing. Because Orice's family had signed a 'do not resuscitate' order, the hospital did not resuscitate him and he died." Nelson v. Elba Gen. Hosp., ___ So. 2d at ___.
II. Proceedings Below
A. In the Trial Court
Elba General moved for a summary judgment, pursuant to Rule 56, Ala. R. Civ. P. In support of its motion, Elba General provided an affidavit from Marie Lepore, R.N., who was the director of nursing for the nursing home at the time of Orice Nelson's death.
In her affidavit, Lepore states that she was personally familiar with Orice Nelson's care and that at no time while he was a patient at Elba General did the staff "deviate from the standard of care exercised by similarly situated health care providers practicing in the national medical community under the same or similar circumstances." She further states that the oxygen administered via a nasal cannula was palliative, not life-sustaining, and that on several occasions the cannula became displaced from Orice Nelson's nose, but that none of those incidents harmed him.
Nelson opposed Elba General's motion for summary judgment by proffering two affidavits, one from Valerie L. Hamilton, R.N., and the other from Carolyn Hudson, L.P.N. Hudson's affidavit stated that she was employed by Elba General at the time of Orice Nelson's death. She further stated that by allowing Orice Nelson's oxygen to be turned off Elba General "failed to follow the medical orders of Dr. Dyess." She concluded that this failure was "gross negligence" and that the treatment Orice Nelson received while a patient at Elba General "caused or contributed to death."
Hamilton stated in her affidavit that she had reviewed the medical files in this case and had concluded that allowing Orice Nelson's oxygen to be turned off "would be a breach of the standard of care of the nurse health care providers providing care and treatment to Mr. Nelson."
Elba General filed two concurrent motions to strike the affidavits of Hudson and Hamilton. The motions were substantively ident
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