Photo of Rachel B. Weil

We wanted avocado toast for lunch a week or two ago.  And we had a perfect avocado on the kitchen counter and some nice whole-grain bread in the breadbox.   So we cut the avocado in half, “unscrewed” it to leave the pit in one half, then drove the point of a sharp knife into the pit to remove the pit from the flesh of the avocado.  At least that was the plan.  In what we have learned is such a frequent occurrence that it has gained its own moniker (“avocado hand”) among emergency room personnel, the first half-inch or so of the knife actually ended up embedded about an inch below the middle finger of our left hand.  We were home alone, and we had the (uncharacteristic) presence of mind to apply pressure to our hand and lift it above our head until the (impressive) bleeding slowed.  We then made our way to a local emergency room, where a delightful and efficient nurse practitioner bestowed two stitches upon us, along with enough bandaging for an upper extremity amputation.  All in all, a relative non-event, notwithstanding the war zone we created all over our kitchen.  And we were extremely impressed with treatment – both medical and human – we received at the hospital.  We were in and out in less than an hour, and everyone we met was kind, courteous, and competent.

Maybe that’s why we were attracted to today’s case, in which an appellate court corrected a trial court’s misadventure involving a verdict against a hospital that neither the facts nor the law supported.  In Jackson Hosp. & Clinic, Inc. v. Murphy, 2021 Ala. LEXIS 65 (S. Ct. Ala. June 25, 2021), the plaintiff underwent a ureteroscopy procedure to remove kidney stones.  The procedure involved the use of a “glidewire” to establish the correct path through the urinary tract to the kidneys, where a laser would be used to break up the stones.  The surgery appeared successful, and the plaintiff’s first follow-up visit to the urologist was uneventful, but it was later discovered, when the plaintiff experienced pain and bloody urine, that a piece of the glidewire had been left behind and was lodged in the plaintiff’s bladder.  The plaintiff sued both the urologist who performed the procedure and the hospital where it was performed, asserting claims under the Alabama Medical Liability Act (AMLA).  While the complaint included claims against the hospital for both direct and vicarious liability (based on the doctor’s conduct), the hospital’s counsel confirmed, during a conference on motions in limine, that the plaintiff was pursuing only vicarious liability claims against the hospital, not independent claims under any product liability theory.   (The complaint did not include claims that the hospital had negligently provided a defective glidewire.) During opening statements, the plaintiff’s lawyer stated that the case was about a “defective doctor,” not a “defective product.”  Jackson Hosp., 2021 Ala. LEXIS 65 at *5, asserting that, “when a doctor leaves a foreign object in somebody’s body and that foreign object causes damage, that’s medical malpractice.”  In turn, the defendants’ lawyers stated that the doctor had performed the procedure properly but that the glidewire had broken because it was defective.

The plaintiff’s expert testified that the doctor should have discovered the retained wire fragment during the first follow-up visit and that her failure to do so violated the applicable standard of care.  He also testified, however, that it was standard procedure for hospitals to provide guidewires to doctors in sealed sterile packaging that remained unopened until the doctor was ready to use it, and that the standard of care did not contemplate anyone inspecting the wire before it was used or measuring it after it was used and removed from the patient’s body.

At the close of the plaintiff’s case, both the doctor and the hospital moved for judgment as a matter of law.  The hospital contended that the plaintiff had not proved that any hospital employee had breached any applicable standard of care or had failed to “exercise such reasonable care, skill and diligence as used by similarly situated health care providers.”  Id. at *9.  The hospital also moved for judgment as a matter of law on any claim other than vicarious liability, relying on the parties’ stipulated agreement during pretrial proceedings.  Counsel for the plaintiff argued that the direct liability claim should survive because it was “incredibly unfair for the . . . hospital [which] provided the tool to the doctor to use to say this wasn’t the doctor’s negligence but you also shouldn’t be able to say that we’re responsible because we provided the defective product.”  Id. at *10 (confusing lack of punctuation in original).  Counsel for the plaintiff also stated that he had “gone through and reviewed the complaint” and believed “that the complaint [had] sufficiently preserved the duty of a hospital for a defective instrument.”  Id.  The court denied the hospital’s motion for judgment as a matter of law and “stated its intention to instruct the jury on the potential liability of the hospital.”  Id. at *11.

In its case, the hospital presented the testimony of its own expert, who opined that the hospital was not responsible for the retained glidewire, that the doctor had performed in accordance with the relevant standard of care, and that “the only reasonable explanation [was] that the glidewire was defective.” The expert also confirmed that it was “standard, customary, and usual practice” for glidewires to be delivered to the operating room in sealed packages and for neither the surgeon nor anyone else at the hospital to conduct a formal inspection of the wire before it was used.”  Id. at *12-13.

The judge instructed the jury that, “when a hospital provides instruments or equipment for use in the treatment of patients,  [the] hospital must use that level of reasonable care, skill and diligence as other hospitals use to see that the instruments and equipment are reasonably fit for the normal purposes and uses for which they are intended and furnished.”  Id. at *15.  The jury entered a verdict against the hospital, awarding the plaintiff $100,000 in compensatory damages.  It entered a verdict in favor of the doctor.  The hospital appealed, arguing that the trial court had erred in permitting the plaintiff to proceed on a claim that the hospital had negligently furnished the doctor with a defective product and in instructing the jury on that “claim.”  It also argued that the evidence did not support such a claim, so the court erred in submitting the claim to the jury.

The appellate court explained that, for the plaintiff to prevail on a claim that the hospital negligently provided defective equipment, he was required, under the AMLA, to demonstrate that the hospital breached the applicable standard of care.  Because both the plaintiff’s expert and the hospital’s expert testified that the standard of care did not require the doctor to inspect, test, or measure the glidewire before or after it was use and did not require the hospital to undertake more responsibility in this regard than the doctor did.   Because the plaintiff had not presented evidence that the hospital breached the standard of care, the jury’s verdict was “unsupported,” id. at *21, and the court reversed it.

We think the court missed the boat a little bit, though it took a water taxi and arrived back at the correct spot.  Given the fact that the complaint did not include a claim that the hospital negligently provided a defective product to the doctor, and also the fact that the parties had stipulated that only vicarious liability was being pursued against the hospital, the court did not need to analyze the evidence:  it could and should have reversed the verdict on purely legal grounds.

But all’s well that ends well.  Same for our hand, by the way.  It’s all healed up, and the scar is all but invisible.  And the numbness in our middle finger is receding.  We have a yen for avocado toast, again, and we have a new “pit removal tool” sent by the Drug and Device Law Rock Climber.

We’ll be in touch with other notable decisions, good and bad.  In the meantime, stay safe out there.