REL: 10/17/2014




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           SUPREME COURT OF ALABAMA
                           OCTOBER TERM, 2014-2015
                            ____________________

                                    1130902
                             ____________________

Steven Alan Kraselsky, personal representative of the estate
                of Marcia Kraselsky, deceased

                                           v.

      David Calderwood, M.D., and Huntsville Clinic, Inc.

                    Appeal from Madison Circuit Court
                              (CV-12-900795)



STUART, Justice.

      Steven Alan Kraselsky ("Steven"), personal representative

of   the    estate      of    his    deceased       mother     Marcia      Kraselsky

("Marcia"), sued David Calderwood, M.D., and Dr. Calderwood's
1130902

employer, Huntsville Clinic, Inc., in the Madison Circuit

Court,     alleging    that     Dr.   Calderwood      committed     medical

malpractice while treating Marcia following her admittance to

Huntsville Hospital in July 2010 and that his alleged act of

malpractice caused her already poor health to decline further

and ultimately led to her death.             The trial court entered a

summary judgment in favor of Dr. Calderwood and Huntsville

Clinic, and Steven appeals that judgment.              We affirm.

                                      I.

    On July 1, 2010, Marcia, who was 80 years old at the

time, fell and sustained a compression fracture to the T12

vertebra    in   her   spine.     She      was   admitted   to   Huntsville

Hospital and, following some initial treatment, was thereafter

discharged and sent to the local HealthSouth Rehabilitation

Hospital for further treatment and therapy. However, sometime

after being admitted to HealthSouth, she went into full

cardiopulmonary arrest and had to be resuscitated.                 On July

12, 2010, Marcia was readmitted to Huntsville Hospital with

extensive pulmonary emboli in both lungs, as well as excess

fluid in the chest cavity and multiple rib fractures as a

result of the resuscitation efforts. She was later determined


                                      2
1130902

to have gastrointestinal bleeding and congestive heart failure

as well.

       At   Huntsville    Hospital,           Marcia    was   treated    by   Dr.

Calderwood, who had been her primary-care physician since 2006

and who had seen her approximately 27 times before this

hospitalization, and by Dr. Misbahuddin Siddiqui, a pulmonary

and critical-care specialist.                 Over the course of the next

week, Marcia experienced pain in her lungs, ribs, back, and

shoulder; however, her breathing did improve to some extent,

although pain still made deep breathing difficult and she

still experienced some shortness of breath. On July 19, 2010,

Marcia was experiencing pain that was sufficiently severe

that, Dr. Calderwood subsequently testified in a deposition,

"she    was   begging    for   something        for     pain."    Since     being

admitted on July 12, Marcia had been taking Norco, a pain

medication     that      is    a    combination         of    hydrocodone     and

acetaminophen,     orally          and    had    been    receiving      morphine

intravenously      as     well;          however,      Dr.    Calderwood      had

discontinued the Norco on July 15, 2010, because Marcia was

having difficulty swallowing.




                                          3
1130902

       During her previous consultations with Dr. Calderwood,

and upon being admitted to Huntsville Hospital, Marcia had

indicated that she was allergic to over 20 medications,

including        pain    medications    such   as   Darvon    and   Darvocet

(propoxyphene),           Motrin     (ibuprofen),      codeine,     Dilaudid

(hydromorphone),          Vicodin    (hydrocodone     and   acetaminophen),

morphine, and Demerol (pethidine).              Marcia in fact had been

given a red arm band to wear while at Huntsville Hospital to

alert hospital personnel that she had multiple allergies.

However, in spite of her claimed allergies, Marcia had been

given both morphine and Norco –– which contains the same

active ingredients as Vicodin –– throughout her July 2010

hospitalizations without any apparent allergic reactions.

       Accordingly, after visiting with Marcia on the morning of

July       19,   Dr.    Calderwood   ordered   that   she    be given   6.25

milligrams of Demerol intravenously every six hours.1                 When a

       1
     Dr. Calderwood has stated in an affidavit that he
discussed Marcia's alleged Demerol allergy with her during
that July 19 visit and that she explained that she got a
headache when taking Demerol in the past. He concluded that
the headache was no more than a side effect and not
symptomatic of a true allergy. He also stated that Marcia
consented to receiving Demerol at that time. Dr. Siddiqui
testified that he had a similar conversation with Marcia about
her claimed allergies when she was admitted and that he had
also concluded that the headaches and nausea she associated
                                        4
1130902

nurse subsequently reviewed the order, she recognized that

Demerol was a listed allergen on Marcia's chart, and she

accordingly contacted Dr. Calderwood to remind him of that

fact and to verify his orders.              Dr. Calderwood did in fact

confirm the order, and hospital records associated with the

order indicate that "M.D. is aware of allergy."                    The nurse

administered Demerol to Marcia at approximately 5:20 p.m.

       Prior to receiving the Demerol, Marcia's vital signs had

been taken at 3:30 p.m. and were relatively normal –– a

respiration     rate   of    20,    pulse    rate   of   85,    and    oxygen-

saturation rate of 96%.       When her vital signs were taken again

at approximately 8:00 p.m., her respiration rate had increased

to 44, her pulse rate was up to 118, and her oxygen-saturation

rate    was   only   86%.     She     was    accordingly       moved   to    the

intensive-care       unit,    where    she     subsequently       went      into

cardiopulmonary arrest and was resuscitated after her family

rescinded a previous do-not-resuscitate order.                    The family

later agreed to reinstate the do-not-resuscitate order, and

Marcia died on July 22, 2010.




with Demerol and morphine were not true allergic reactions.
                                      5
1130902

      On June 15, 2012, Steven initiated a medical-malpractice

action    against   Huntsville         Hospital,     Dr.   Calderwood,    and

Huntsville      Clinic,    alleging     that   they    had    breached   "the

standard of care in causing or allowing [Demerol] to be given

to [Marcia] in light of her condition and her sensitivity to

this medication." Steven thereafter voluntarily dismissed his

claim against Huntsville Hospital, and, following a period of

discovery, Dr. Calderwood and Huntsville Clinic moved for a

summary judgment in their favor, arguing that Steven had not

identified substantial evidence indicating that Dr. Calderwood

either breached the applicable standard of care or that any

such breach proximately caused Marcia's death. Steven opposed

the   motion,    and,     on   April   30,   2014,    after    conducting   a

hearing, the trial court granted Dr. Calderwood and Huntsville

Clinic's motion and entered a summary judgment in their favor.

On May 16, 2014, Steven filed his notice of appeal to this

Court.

                                       II.

      We review a summary judgment pursuant to the following

standard:

           "This Court's review of a summary judgment is de
      novo. Williams v. State Farm Mut. Auto. Ins. Co.,

                                        6
1130902

    886 So. 2d 72, 74 (Ala. 2003). We apply the same
    standard of review as the trial court applied.
    Specifically, we must determine whether the movant
    has made a prima facie showing that no genuine issue
    of material fact exists and that the movant is
    entitled to a judgment as a matter of law. Rule
    56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of
    Alabama v. Hodurski, 899 So. 2d 949, 952-53 (Ala.
    2004).   In making such a determination, we must
    review the evidence in the light most favorable to
    the nonmovant. Wilson v. Brown, 496 So. 2d 756, 758
    (Ala. 1986). Once the movant makes a prima facie
    showing that there is no genuine issue of material
    fact, the burden then shifts to the nonmovant to
    produce 'substantial evidence' as to the existence
    of a genuine issue of material fact.        Bass v.
    SouthTrust Bank of Baldwin County, 538 So. 2d 794,
    797-98 (Ala. 1989); Ala. Code 1975, § 12-21-12."

Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39

(Ala. 2004).

                            III.

    To prevail in a medical-malpractice action under the

Alabama Medical Liability Act ("AMLA"), § 6–5–480 et seq. and

§ 6–5–541 et seq., Ala. Code 1975, a plaintiff must establish

1) the appropriate standard of care, 2) that the defendant

health-care provider breached that standard of care, and 3) a

proximate causal connection between the health-care provider's

alleged breach and the identified injury.    Morgan v. Publix

Super Markets, Inc., 138 So. 3d 982, 986 (Ala. 2013).   Thus,

to survive a defendant health-care provider's summary-judgment

                              7
1130902

motion alleging the absence of substantial evidence that would

establish any one of these three items, the plaintiff must

submit –– or identify in the existing record –– substantial

evidence that would in fact establish the challenged item or

items.       In the instant case, Dr. Calderwood and Huntsville

Clinic alleged in their summary-judgment motion that there was

not substantial evidence indicating (1) that Dr. Calderwood

had breached the applicable standard of care or (2) that any

such       breach   proximately   caused     Marcia's   death.    After

reviewing the evidence submitted by Steven and the record as

a whole, we agree that there is a lack of substantial evidence

indicating that the alleged breach of the standard of care

committed      by   Dr.   Calderwood    ––   ordering   Demerol   to   be

administered to Marcia, who had listed it as a medication she

was allergic to –– proximately caused her health to decline

and, ultimately, her death.2


       2
     Our holding that there is a lack of substantial evidence
of proximate causation obviates the need to consider the
sufficiency of the evidence on the issue whether Dr.
Calderwood in fact breached the standard of care.         Our
proximate-causation analysis will assume that Steven did
adduce substantial evidence of a breach of the standard of
care; however, because it is ultimately unnecessary for us to
make a conclusion in that regard, we express no opinion on
that issue.
                                    8
1130902

      With regard to proximate causation in an AMLA case, this

Court has stated that "the plaintiff must prove, through

expert medical testimony, that the alleged negligence probably

caused, rather than only possibly caused, the plaintiff's

injury."    University of Alabama Health Servs. Found. v. Bush,

638 So. 2d 794, 802 (Ala. 1994) (emphasis added).              See also

Bradford v. McGee, 534 So. 2d 1076, 1079 (Ala. 1988) ("[T]he

plaintiff [in a medical-malpractice action] must adduce some

evidence indicating that the alleged negligence (the breach of

the appropriate standard of care) probably caused the injury.

A mere possibility is insufficient.").             In this case, Steven

has   not   retained   his    own   expert    to     testify   regarding

causation; rather, he argues that the deposition testimony of

Dr. Siddiqui is sufficient to establish that Dr. Calderwood's

order that Marcia be administered Demerol proximately caused

the   decline   in   her   health   leading   to    her   death.   When

questioned by Steven's attorney during his deposition, Dr.

Siddiqui testified as follows:

      "Q. Do you see a correlation between the timing of
          the Demerol and [Marcia's] breathing problem or
          her cardiopulmonary arrest?

      "A. Usually you would expect it to be much sooner
          because it was a quick onset drug and it was

                                    9
1130902

          given [in an] IV.   You usually do not see it
          that late.

    "Q. So you don't think there was any relationship?

    "A. Usually we see it much earlier. I'm not sure
        that it –– I cannot say for certain that it did
        not, 100%, had no impact on her breathing
        whatsoever.    But it's just too late of a
        reaction.   Usually with IV administration we
        see [it] much sooner than what we did in this
        case.

    "Q. Is there anything else you can point to as the
        likely cause of her going into a code ... right
        after the Demerol had been administered.

    "A. In my judgment the patient was crucially ill
        throughout this hospitalization. She came in
        with an arrest.    She came in with breathing
        difficulties. And I actually had talked to the
        family and the patient upon admission given her
        presentation that the prognosis is going to be
        poor. And I'm not sure that, you know, that ––
        how much Demerol contributed, but she was
        seriously ill with poor prognosis.

    "....

    "Q. So with a patient having those comorbidities or
        these serious problems [pulmonary emboli and
        congestive heart failure], would the addition
        of the Demerol be a contributing factor in your
        opinion to her respiratory problems in all
        likelihood?

    "....

    "A. Yes, certainly an excessive dose of any
        medication in her case would act as a
        suppressant.  But from what my understanding


                              10
1130902

          is, ... she received a small dose and the
          reaction was much delayed.

    "Q. Can you point us to any evidence that would
        lead you to conclude as her attending physician
        for the lung situation that she would have gone
        ahead and had this cardiopulmonary arrest on
        June 19th even if she hadn't been given the
        Demerol?

    "A. Probably?

    "Q. You think that probably would have happened at
        the same time without the Demerol?

    "A. I cannot, to be honest, correlate the two. But
        it was high probability that she would have
        arrest again, and it was discussed with the
        family and her. ... I think, yes, there was a
        high probability it would have happened again.

    "Q. Without the administration of any Demerol or an
        allergic medication for pain?

    "A. Yes, sir.

    "Q. So it sounds to me as though you are excluding
        any possible relationship of the administration
        of the 6.25 milligrams of Demerol and her
        arrest, respiratory problem?

    "A. I am not. What I would say is that I –– again,
        I'm not –– I wasn't there when it happened. I
        did not examine her that night. But she had
        the high probability of cardiac arrest even
        without getting anything. Certainly any drug
        that you will administer that will have impact
        on slowing the patient's breathing down can
        also act as a factor. But she –– was that the
        primary thing that led to the arrest, in my
        judgment I do not think so.


                            11
1130902

    "Q. If not primary, could it have played a
        causative role, though, to some degree, so that
        it adversely affected what was already in
        place?

    "A. It is possible.

    "Q. Possible or probable or certain?

    "A. Possible.

    "Q. Did you discuss that with the family after the
        Demerol questions they raised?

    "A. I remember doing so, yes.

    "Q. That there was a possible connection between
        the Demerol and her breathing problem that went
        on to the coma?

    "A. Yes.    They were very concerned about the
        Demerol.   And, if I remember correctly, my
        statement was the same that, yes, she did
        receive it. She was ask –– she was hurting,
        she was asking for pain medicines. And I think
        I mentioned it to them –– I actually remember
        very clearly saying that I do not think that
        was the primary reason of her arrest.

    "Q. What do you think was the primary reason for
        the arrest that went on to the coma and then
        her death?

    "A. I think the amount of embolus burden, emboli
        burden that she had in her lungs probably has
        to do more with it.   She had quite a bit of
        clot burden. All the emboli that she had, they
        were bilateral and they put a strain on her
        heart. And that's why she had gone into the
        initial arrest, primary arrest, when she came
        in."


                            12
1130902

Dr. Calderwood and Huntsville Clinic's attorney subsequently

questioned Dr. Siddiqui as well:

    "Q. I'm going to hand you [Marcia's]           death
        certificate ....         Is that the       death
        certificate that you filled out?

    "A. That's correct.

    "....

    "Q. And you indicated that the primary cause of
        death was what?

    "A. Cardiopulmonary arrest.

    "Q. Secondary to?

    "A. Patient had pulmonary embolism and respiratory
        failure.

    "Q. Did you list any other contributing causes to
        her death?

    "A. Sepsis, [gastrointestinal] bleeding.

    "Q. And do you feel that sepsis did contribute to
        cause her death?

    "A. As a contributor, yes, to comorbidities.

    "Q. You didn't list an allergic medication reaction
        as being in any way responsible for her death?

    "A. I did not list that.

    "....

    "Q. And did you find any evidence in the hospital
        chart that she suffered a true anaphylactic or
        allergic reaction?

                             13
1130902

    "A. I did not find any such documentation.

    "Q. You feel that the cause of her respiratory
        decline that occurred was the embolus burden in
        her lungs which was placing a strain on her
        heart?

    "A. Primarily, yes."

Steven's attorney then had a few final questions for Dr.

Siddiqui:

    "Q. Doctor, with the primary cause of the embolus
        burden placing a strain on her heart, a patient
        who is reportedly allergic to Demerol would be
        adversely affected by getting that on top of
        that burden, wouldn't she?

    "A. She can be.

    "Q. And wasn't she? As you can see in this chart
        and putting that on top of that burden was a
        problem and sent her over the edge, so to
        speak, or into the arrest?

    "A. I can see that it can contribute.

    "Q. I mean, you're familiar with the term 'tipping
        point' aren't you?

    "A. Yes.

    "Q. I don't know that that's a medical term.   Is it
        a medical term?

    "A. No, sir.

    "Q. But when we look at the temporal nature of her
        situation in the hospital in July of 2010, the
        tipping point appears to have occurred after
        having been given Demerol, doesn't it?

                            14
1130902

       "A. It appears so."

       In his brief to this Court, Steven emphasizes the final

excerpt of Dr. Siddiqui's testimony and argues that "Dr.

Siddiqui's testimony that the Demerol could adversely affect

[Marcia] and was the 'tipping point' that sent her over the

edge to her arrest and death is substantial medical evidence

on proximate cause which makes it a jury question."                    Steven's

brief, at p. 38.           We disagree with Steven's characterization

of Dr. Siddiqui's testimony.                Although keeping in mind that

our standard of review requires us to review the evidence in

the light most favorable to Steven, the nonmovant, Dow, 897

So.    2d    at    1038-39,      this    excerpt   does     not   indicate    that

Marcia's health deteriorated as a result of being given

Demerol;         rather,   it    indicates     only      that   Marcia's   health

deteriorated after she was given Demerol.                          However, the

sequence of events in this case is undisputed, and what Steven

needs       to    defeat   Dr.    Calderwood       and    Huntsville    Clinic's

summary-judgment motion is not additional evidence supporting

that    time       line    but    some    evidence       indicating    that    the

administration of Demerol probably –– not possibly –- caused

the decline in Marcia's health.                Even if we were inclined to


                                          15
1130902

interpret the discussion of the "tipping point" in the manner

urged   by   Steven,   it   is    clear    from   the   entirety     of   Dr.

Siddiqui's testimony that he did not consider Demerol to have

proximately caused the decline in Marcia's health leading to

her   death.     Indeed,    when      specifically      asked   if   it   was

"possible,"    "probable,"       or   "certain"     that   Demerol    had   a

"causative     role"   in   Marcia's       death,    Dr.    Siddiqui      was

comfortable stating only that it was possible.                  In Giles v.

Brookwood Health Services, Inc., 5 So. 3d 533, 550 (Ala.

2008), this Court cautioned against the practice of relying on

isolated excerpts from deposition testimony to argue in favor

of a proposition the testimony as a whole does not support,

stating:

      "[T]he testimony of [the plaintiff's] medical expert
      is not sufficient to satisfy [the plaintiff's]
      burden    of    producing    substantial    evidence
      demonstrating the existence of a genuine issue of
      material fact as to her medical-malpractice claims
      ....   Even if portions of her expert's testimony
      could be said to be sufficient to defeat a
      summary-judgment motion when viewed 'abstractly,
      independently, and separately from the balance of
      his testimony,' 'we are not to view testimony so
      abstractly.' Hines v. Armbrester, 477 So. 2d 302,
      304 (Ala. 1985). See also Malone v. Daugherty, 453
      So. 2d 721, 723–24 (Ala. 1984).     Rather, as this
      Court stated in Hines:




                                      16
1130902

          "'We are to view the [expert] testimony as
          a whole, and, so viewing it, determine if
          the testimony is sufficient to create a
          reasonable inference of the fact the
          plaintiff seeks to prove. In other words,
          can   we  say,   considering  the   entire
          testimony of the plaintiff's expert, that
          an inference that the defendant doctor had
          acted contrary to recognized standards of
          professional care was created?'

    "477 So. 2d at 304–05; see also Pruitt v. Zeiger,
    590 So. 2d 236, 239 (Ala. 1991) (quoting Hines, 477
    So. 2d at 304–05).

         "Similarly, in Malone v. Daugherty, supra,
    another medical-malpractice case, we noted that a
    portion   of  the   plaintiff's  medical  expert's
    testimony in that case,

          "'when viewed abstractly, independently,
          and separately from the balance of his
          sworn statement, would appear sufficient to
          defeat the [defendant's] motion for summary
          judgment. But our review of the evidence
          cannot be so limited. The test is whether
          [the    plaintiff's    medical    expert's]
          testimony, when viewed as a whole, was
          sufficient to create a reasonable inference
          of the fact Plaintiff sought to prove.
          That is to say, could a jury, as the finder
          of fact, reasonably infer from this medical
          expert's testimony, or any part thereof
          when viewed against the whole, that the
          defendant doctor had acted contrary to the
          recognized standards of professional care
          in the instant case.

               "'Thus, in applying this test, we must
          examine the expert witness's testimony as
          a whole.'


                              17
1130902

    "453 So. 2d at 723; see also Downey v. Mobile
    Infirmary Med. Ctr., 662 So. 2d 1152, 1154 (Ala.
    1995) (noting that portions of a medical expert's
    testimony must be viewed in the context of the
    expert's testimony as a whole); Pendarvis v.
    Pennington, 521 So. 2d 969, 970 (Ala. 1988) ('[W]e
    are bound to consider the expert testimony as a
    whole.')."

    It is clear, when examining Dr. Siddiqui's testimony as

a whole, that he did not consider Demerol to have probably

caused the decline in Marcia's health leading to her death.

There is no other evidence in the record from which a jury

could   reasonably     infer    that     fact   either.     Because     such

evidence is lacking, and because proximate causation is an

essential    element    of     Steven's    medical-malpractice        claim

against Dr. Calderwood and Huntsville Clinic, their summary-

judgment motion was due to be granted, and the trial court

acted properly in doing so.

                                   IV.

    Steven sued Dr. Calderwood and Dr. Calderwood's employer,

Huntsville Clinic, alleging that Marcia died as a result of

Dr. Calderwood's order that Marcia be given Demerol in spite

of the fact that Dr. Calderwood knew she had previously

professed to having an allergy to Demerol.                The trial court

thereafter   entered     a     summary    judgment   in    favor   of    Dr.

                                    18
1130902

Calderwood and Huntsville Clinic, and Steven appealed that

judgment   to   this   Court.   Assuming,   arguendo,   that   Dr.

Calderwood breached the standard of care by ordering that

Demerol be administered to Marcia, and, noting again that Dr.

Calderwood strongly contests that fact, the summary judgment

entered by the trial court is nevertheless due to be affirmed

because there is no evidence in the record indicating that the

administration of the Demerol to Marcia proximately caused the

decline in her health leading to her death.     The judgment of

the trial court is accordingly hereby affirmed.

    AFFIRMED.

    Moore, C.J., and Parker, Shaw, and Wise, JJ., concur.




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