REL: 09/26/2014




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          SUPREME COURT OF ALABAMA
                              SPECIAL TERM, 2014
                             ____________________

                                    1121480
                             ____________________

  Frank Kruse, Esq., administrator of the estate of Timothy
        Lovely, M.D., and Southern Medical Group, Inc.

                                           v.

                                  Jeremy Freeman

                    Appeal from Walker Circuit Court
                              (CV-07-0134)



STUART, Justice.

      AFFIRMED.        NO OPINION.

      Bolin, Parker, Shaw, Main, Wise, and Bryan, JJ., concur.

      Moore, C.J., and Murdock, J., dissent.
1121480

MOORE, Chief Justice (dissenting).

    In    my   view   the   trial       court's   failure   to   give   a

contributory-negligence     instruction       constituted    reversible

error. Therefore, I respectfully dissent from the no-opinion

affirmance of the judgment of the trial court.

                  Facts and Procedural History

    Although suffering from a degree of cerebral palsy and

mental retardation, Jeremy Freeman nonetheless had been able

to work. After he fell at his house, Freeman was examined on

March 24, 2005, by Dr. Timothy Lovely, who ordered a CT scan

of Freeman's brain and then diagnosed him as suffering from a

mild concussion. On April 4, Freeman returned to Dr. Lovely

and complained about neck pain and numbness in his arms and

hands. Dr. Lovely ordered an X-ray of the upper (cervical)

spine, which revealed only a minor curvature. Thinking that

the crutch Freeman was using following knee surgery might be

causing the numbness, Dr. Lovely referred Freeman to Dr. Gary

N. Russell, the orthopedic surgeon who had performed the knee

surgery, whom he saw the next day.

    Two months later Freeman's mother found him helpless in

his bed. He was transported to a hospital, where an MRI


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1121480

revealed a herniated disk. A spinal fusion relieved the

pressure but left Freeman wheelchair-bound. In 2007 Freeman

sued    four   doctors,     including   Dr.   Lovely,    and   associated

hospitals,     claiming     that   their   delay   in   diagnosing    the

herniated disk was a breach of the standard of care and had

caused him permanent injury. At trial Dr. Lovely and Southern

Medical Group, Inc., the only remaining defendants, argued

that Freeman had contributed to the delay in treatment by not

informing the three other doctors who had examined him after

April 4 of the numbness in his arms and hands and the neck

pain.

       On March 22, 2013, the jury awarded Freeman $3.5 million

in compensatory damages. The trial court denied Dr. Lovely's

posttrial motions on August 1. Dr. Lovely committed suicide on

September 11. His estate appeals.

                               Discussion

       Throughout the trial the court indicated numerous times

that    it   planned   to   give   an   instruction     on   contributory

negligence, namely that Freeman's failure properly to inform

the doctors of his symptoms contributed to the delay in

treatment of the herniated disk. The court twice formally


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denied motions by Freeman seeking to exclude a contributory-

negligence instruction.

         "In order to prove contributory negligence, the
    defendant must show that the party charged: (1) had
    knowledge of the condition; (2) had an appreciation
    of the danger under the surrounding circumstances;
    and (3) failed to exercise reasonable care, by
    placing himself in the way of danger."

Brown v. Piggly-Wiggly Stores, 454 So. 2d 1370, 1372 (Ala.

1984). "The question of contributory negligence is normally

one for the jury. However, where the facts are such that all

reasonable men must reach the same conclusion, contributory

negligence may be found as a matter of law." 454 So. 2d at

1372.

    Because two months elapsed between Freeman's visit to Dr.

Lovely and the discovery of Freeman's spinal condition, I

believe a justiciable issue existed as to whether Freeman was

contributorily negligent. In that period Freeman saw a number

of other doctors about his ailments, none of whom diagnosed

the problem until Freeman presented himself at the hospital

for examination in mid-June in a state of paralysis. Certainly

the jury was entitled to find that Freeman did not appreciate

the necessity of fully informing the other doctors of his

symptoms and thus was not negligent. On the other hand, I

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believe that Dr. Lovely was entitled to have the jury decide

this fact-bound question based on its evaluation of what

Freeman said to the three other doctors who saw him between

his   visit   to   Dr.    Lovely   and     the   manifestation    of   his

paralysis. Because credible testimony supported Dr. Lovely's

theory of the case, he was entitled to have the jury so

instructed.    "The      defendant       has   the   right   to   request

instructions based upon any material hypothesis which the

evidence in his favor tends to establish." Ex parte McGee, 383

So. 2d 205, 206 (Ala. 1980).

      For the above reasons, I respectfully dissent.




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