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Black v. Comer7/15/2005
Dr. Clifford Black, a defendant in a case in the Calhoun Circuit Court, appeals from a summary judgment in favor of Holley Lynn Comer, his former patient and the plaintiff below. After Dr. Black performed a laparotomy on Comer, Comer sued Dr. Black, stating claims based on several theories, including battery and, as eventually framed by the parties, a failure to obtain consent. The claims related to Dr. Black's surgical removal from Comer's abdomen of a tissue mass that turned out to be a kidney. The trial court held that Dr. Black was liable as a matter of law on the battery and failure-to-obtain-consent claims, and a jury subsequently awarded Comer compensatory damages. We reverse and remand for a new trial.
Facts
Viewing the facts in the light most favorable to the non-movant, Dr. Black, as we must in compliance with our standard of review of a summary judgment, Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412, 413 (Ala. 1990), we find the following facts to have been established by substantial evidence:
In early 1995 Comer, who was then 40 years old, sought treatment from his primary-care physician for night sweats, weight loss, and "late day" fevers. Additionally, he had recently experienced an axillary (armpit) vein thrombosis. Comer's clinical presentation placed a diagnosis of lymphoma (a tumor of the lymph nodes) high on the index of suspicion. His primary-care physician ordered a CT scan of Comer's abdomen. The radiologist interpreting the scan reported a small calcification in the left posterior lung and some thickening of the bowel, but identified no other abnormalities. The radiologist's report noted that " he kidneys are excreting contrast well without evidence of hydronephrosis or renal mass."
Comer's primary-care physician referred Comer to Dr. Black, a board-certified general surgeon, for a colonoscopy. Dr. Black performed the colonoscopy and found nothing to explain Comer's symptoms. Because those symptoms continued to suggest a lymphoma or at least some type of hidden tumor, Dr. Black recommended a diagnostic abdominal laparoscopy, a procedure in which the doctor views the abdominal cavity through a laparoscope, an optical surgical instrument inserted through a small cut in or near the patient's navel. If Dr. Black could not adequately evaluate Comer's condition using the laparoscope, he wanted to convert the procedure to an exploratory laparotomy, a procedure in which the surgeon opens the patient's abdomen. He explained both procedures to Comer. Dr. Black told Comer that he might "have to remove tissue in order to make a diagnosis or to treat what found" and that he might have to "do some procedure ... appropriate for what he found." Dr. Black also discussed with Comer "that it might become necessary to remove abnormal tissue depending upon the findings of the laparoscopy and possible laparotomy Comer did consent to the removal of abnormal tissue which could be the cause of his symptoms."
Comer was admitted to Northeast Alabama Regional Medical Center on May 18, 1995. He authorized Dr. Black to perform the procedures by signing a consent form that read, in pertinent part:
"I hereby authorize Dr. Clifford Black and whomsoever he ... may designate as assistant to perform upon myself ... Diagnostic Laparoscopy[,] possible open Laparotomy[,] and such additional operations/ procedures during the course of the above as are considered therapeutically necessary or advisable in the exercise of professional judgment.
"The nature and purpose of the operation/procedure, the reason it is considered necessary, the possible risks involved, the possibility of complications and alternative methods of treatment hav
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