Coleman v. Anniston HMA, LLC, [Ms. 1151212, Dec. 1, 2017] __ So. 3d __ (Ala. 2017). This per curiam decision (Stuart, C.J., and Main, Bryan, and Sellers, JJ., concur; Shaw, J., concurs specially; Bolin, Parker, Murdock, and Wise, JJ., dissent) affirms without opinion a summary judgment entered by the Calhoun Circuit Court dismissing Stringfellow Memorial Hospital from a medical negligence case. Although as a no-opinion affirmance, the case has no precedential value, the special writings in the case highlight an issue as to which the Court was sharply divided and as to which practitioners should take note.
The decedent was admitted to the hospital late at night and was diagnosed promptly with a gastrointestinal bleed. Ms. *2-3. The theory of negligence against the hospital was that its nurses should have alerted the decedent’s treating physician, Dr. Black, of her worsening condition despite being given multiple units of blood during the night. Dr. Black, who saw the patient at 8:30 the following morning, testified by affidavit that he would not have prescribed any different care if he had been advised by the nurses during the night of the patient’s worsening condition. Ms. *4.
Based largely upon Dr. Black’s affidavit testimony, the circuit court granted the hospital’s motion for summary judgment. Justice Bolin’s dissenting opinion joined by Justices Murdock and Wise, noted that
In the present case, there is a disagreement between two medical experts – Dr. Moulis and Dr. Black [the treating physician] – as to the care that should have been provided to Virginia. This is exactly the genuine issue of material fact that is reserved for a jury. Dr. Black’s assertion that he would not have changed his course of treatment even if he had been told that Virginia’s condition was worsening does not conclusively establish that the nurses’ care and treatment of Virginia during the overnight hours in no way caused or contributed to her death.
Courts in Illinois have addressed this issue, holding that where expert testimony establishes both a duty to notify and the availability of treatment that would have been successful had notice been given, the treating physician’s statement that he would not have done anything had he been notified creates a genuine question of fact for the jury.
Ms. *34, Bolin, J., dissenting. The dissenting opinion also disagreed with the assertion in Justice Shaw’s special concurrence that the credibility of Dr. Black’s affidavit testimony that he would have done nothing different if notified by the nurses of his patient’s deteriorating condition was not before the Supreme Court because the plaintiff had not attacked Dr. Black’s affidavit in opposing summary judgment in the circuit court. Ms. *24, n. 2. The dissenters concluded that Dr. Black’s credibility was necessarily before the trial court inasmuch as a trial court is not to make credibility determinations in ruling upon motions for summary judgment and plaintiff’s expert’s affidavit conflicted with the treating physician’s testimony. Ibid.