 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
MCCANN v. LEE5/31/1996
Woodrow Wilson Lee sued Dr. Martin P. McCann, a pathologist, alleging that Dr. McCann had negligently diagnosed him with cancer; his wife, Frances Louise Lee, sued Dr. McCann for damages for loss of consortium. Mr. Lee died before trial, and Mrs. Lee, as executrix of her husband's estate, was substituted as plaintiff as to the claim Mr. Lee had filed. The complaint was amended to allege also that Dr. McCann had wrongfully caused the death of Mr. Lee. All three claims against Dr. McCann went to trial. The jury awarded the plaintiff $1,000,000 in compensatory damages on the negligent diagnosis claim and $1,000,000 in compensatory damages on the loss of consortium claim. The jury returned a verdict in favor of Dr. McCann on the wrongful death claim.
Dr. McCann moved for a judgment notwithstanding the verdict, a new trial, or a remittitur of the damages, contending that the damages awarded were excessive. The trial court agreed in part and conditioned its denial of Dr. McCann's motion for a new trial upon Mrs. Lee's acceptance of a $750,000 remittitur of the compensatory damages award on the loss of consortium claim, reducing that award to $250,000. Mrs. Lee accepted the remittitur on the condition that Dr. McCann not appeal; however, Dr. McCann did appeal. Mrs. Lee then cross appealed from the order requiring a remittitur.
A jury's verdict is presumed correct and will not be disturbed unless it is plainly erroneous or manifestly unjust. Crown Life Ins. Co. v. Smith, 657 So.2d 821 (Ala. 1994); Alpine Bay Resorts, Inc. v. Wyatt, 539 So.2d 160, 162 (Ala. 1988). In addition, a judgment based upon a jury verdict and sustained by the denial of a post-judgment motion for a new trial will not be reversed unless it is plainly and palpably wrong. Ashbee v. Brock, 510 So.2d 214 (Ala. 1987). Because the jury returned a verdict for the plaintiff, any disputed questions of fact must be resolved in her favor, and we must presume that the jury drew from the facts any reasonable inferences necessary to support its verdict. State Farm Auto. Ins. Co. v. Morris, 612 So.2d 440, 443 (Ala. 1993). In short, in reviewing a judgment based upon a jury verdict, this Court must review the record in a light most favorable to the appellee. Continental Cas. Ins. Co. v. McDonald, 567 So.2d 1208, 1211 (Ala. 1990).
In May 1991, Woodrow Lee, a 78-year-old man, was admitted to Phenix Medical Park Hospital with pneumonia. While there, he experienced some rectal bleeding. His physician called in Dr. Howard Weldon, a surgeon, to determine the cause of the bleeding. Dr. Weldon performed a rectal examination, and during that exam he felt a "questionable mass" inside Mr. Lee's rectum. While performing a colonoscopic examination, Dr. Weldon observed a "cauliflower-appearing" mass on the wall of the rectum. Dr. Weldon suspected cancer and took biopsies of the mass. On May 31, 1991, the biopsy material was submitted to Dr. McCann, the pathologist working at the hospital. After examining the tissue specimen submitted, Dr. McCann issued a report with a diagnosis of "mucin producing adenocarcinoma, biopsies of rectum." Specifically, Dr. McCann's diagnosis was that Mr. Lee had a malignant tumor in his rectum. On that same date, Dr. McCann left for a vacation. Based upon the report issued by Dr. McCann, Dr. Weldon told Mr. Lee that he had cancer and needed surgery. Dr. Weldon explained to Mr. Lee that this surgery would require the complete removal of his rectum, that he would no longer have any rectal function, and that he would have to defecate into a bag through a colostomy. Dr. Weldon explained the possible side effects of the surgery, including impotence and sexual dysfunction. Dr. Weldon performed the surgery on June 3, 1991. Dr.
Page 1 2 3 4 5 Alabama Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|