Jury Awards $765,920 to Hysterectomy Patient After Hospital Nurses Skipped Preoperative Antibiotic

Janann Durham was admitted to Lloyd Noland Hospital on May 29, 1996, for two procedures during a single operation: a total vaginal hysterectomy with an anterior colporrhaphy, and a retropubic suspension performed by a urologist. Her gynecologist, Dr. John Edwards, and his partner, Dr. George McGrady, handled the gynecologic surgery. The hospital provided the operating room, the nursing staff and the paperwork that went with them.

The central problem was a preoperative antibiotic that never reached her. Dr. McGrady's handwritten admission orders did not prescribe one, and under the practice the surgeons described, standing orders calling for the antibiotic were supposed to be placed in the chart by the nursing staff. They were not. Durham went into surgery without the antibiotic. After she went home she developed a postoperative infection that required her to be admitted to the hospital again and treated extensively.

Durham sued on May 27, 1998. Her complaint accused the hospital, through its nurses, of failing to insert the standing orders in her chart, failing to follow them, failing to administer the antibiotic and clearing her for surgery without the orders being properly carried out and documented. Dr. Edwards and the urologist were dismissed from the case by joint stipulation, so the trial proceeded against the hospital alone. Shay Samples, Ralph D. Cook and Bruce J. McKee represented Durham.

The jury trial began on July 7, 2003. The hospital's defense turned on whether standing orders requiring a preoperative antibiotic existed at all. Dr. Edwards and Dr. McGrady both testified that they did, and the jury was entitled to believe them. A complication arose after the case was submitted: one juror left the state for a family reunion on July 17 and did not return. The trial court seated the alternate after the jury had deliberated for about a day and a half, questioned her about whether she could be impartial, and told the jury to begin its deliberations over. The hospital moved for a mistrial, and the court denied it.

The jury returned a verdict of $765,920 for Durham: $333,120 for past compensatory damages and $432,800 for future compensatory damages.

The hospital appealed the denial of its motion for a new trial. It argued that substituting an alternate after deliberations had begun was improper, that the verdict went against the great weight of the evidence, and that the trial court should have ordered the future damages paid in periodic installments under the Alabama Medical Liability Act. The Alabama Supreme Court rejected each point in a per curiam opinion issued January 7, 2005. It held that the hospital had not preserved its main objection to the juror substitution, that the surgeons' testimony supported the verdict, and that the periodic-payment provision of the Act violates the right to trial by jury under the Alabama Constitution, as the court had held in an earlier case. The judgment stood in full.