Bednarski, et al. v. Johnson, [Ms. 1200183, Sept. 30, 2021] __ So. 3d __ (Ala. 2021). In a per curiam plurality opinion, the Court (Shaw, Bryan, Mendheim, and Stewart, JJ., concur; Parker, C.J., concurs specially; Bolin and Mitchell, JJ., concur in part and dissent in part; Sellers, J., dissents) affirms the Lee Circuit Court’s $6.5 million dollar judgment in a medical negligence wrongful death case against Dr. Zenon Bednarski and his practice, Auburn Urgent Care, Inc. (“AUC”). A few months after being prescribed birth control pills for the first time, the decedent Johnson went to AUC on December 1, 2014, complaining of shortness of breath, chest pains, coughing, a headache, and a sore throat. Dr. Bednarski diagnosed Hope with bronchitis. Hope returned two days later complaining of sharp chest pains and extreme shortness of breath. Hope was diagnosed with leukocytosis and dyspnea and was prescribed an inhaler. The next morning, Hope died of a pulmonary blood clot.
The Plaintiff substituted Dr. Willis, who saw Hope on her second visit to AUC, for a fictitious party. Defendants argued that Plaintiff was not ignorant of the identity of Dr. Willis so that the substitution of Dr. Willis did not relate back. The opinion rejects this argument because “the AUC triage sheet nowhere reflected Dr. Willis’s name and that, instead, Dr. Bednarski and Dr. Edvin Larson were the only physicians noted on that document as practicing at the AUC clinic.” Ms. *12, citing Ex parte VEL, LLC, 225 So. 3d 591, 602 (Ala. 2016). The opinion also concludes that Plaintiff acted with due diligence and notes that “the failure of the Bednarski defendants to shed any additional light on Dr. Willis’s identity as the physician who had treated Hope on December 3, 2014, in response to discovery requests renders the circumstances of this case similar to those recently addressed by the Court in Ex parte Russell, 314 So. 3d 192, 202-03 (Ala. 2020)(“[T]he trial court could have reasonably concluded that [the plaintiff] had diligently pursued discovery targeted toward identifying [a nurse] but had been hindered by [the hospital]’s failure to timely disclose a requested record.” Ms. *22.
The opinion rejects a number of issues because the Defendants failed to preserve them. For example, the Bednarski Defendants argued that Plaintiff counsel’s reference in closing argument to alleged negligent hiring of Dr. Willis was improper. However, “[b]ecause the Bednarski defendants did not object to the statements of [Plaintiff’s] counsel during closing arguments and because they have failed to demonstrate that the statements were grossly improper, they have not demonstrated that the trial court’s judgment should be reversed based on the statements.” Ms. *39. The Defendants also contended that “the inclusion of an unpleaded ‘negligent hiring’ claim in the jury instructions presented a ‘good count/bad count’ situation under § 6-5-551 and Long v. Wade, 980 So. 2d 378 (Ala. 2007), and that, under Long, a challenge to the sufficiency of the evidence was adequate to preserve their challenge to the jury instructions.” Ms. **41-42. The opinion notes that the defendants in Long objected to the jury instructions and concludes that the Bednarski Defendants’ failure to object to the jury instructions results in a failure to properly present this issue for review. Ms. *42. Similarly, the Bednarski Defendants waived their objection to the qualifications of Plaintiff’s expert witness because they failed to object when his testimony was offered. Ms. *43, citing HealthTrust, Inc v. Cantrell, 689 So. 2d 822, 826 (Ala. 1997).
On the remittitur issue, the opinion notes that the verdict of $9 million was reduced by a $1 million pro tanto settlement with Hope’s OBGYN physician who prescribed Hope birth control pills and failed to accurately interpret genetic testing for Hope’s risk of blood clots. In addition, the trial court granted a remittitur reducing the verdict to $6.5 million following the Hammond/Green Oil hearing. On the reprehensibility analysis, the opinion leaves undisturbed the trial court’s findings that the culpability of the Bednarski Defendants was high because staffing of the clinic was arranged to maximize profits. Ms. **50-51. As to the comparable cases factor, the opinion concludes “[i]n light of the disparate conduct involved, the Bednarski defendants have failed to demonstrate that the trial court was, or that this Court is, obligated to view Cortney’s $1 million settlement with Dr. Hensarling and Lee OBGYN as a highly credible benchmark …” Ms. *54.
Finally, the opinion concludes that “[t]he burden of clearly establishing their financial position fell on the Bednarski Defendants, and we have been presented with no basis to conclude that the trial court erred in its determination that they did not meet that burden” so as to warrant a further reduction of the verdict,” Ms. *62, and “it is unclear … whether the $6.5 million award will actually financially ‘destroy’ the Bednarski defendants.” Ms. *61.