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Hamilton v Scott

Hamilton v Scott

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Published by Kyle Whitmire

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Published by: Kyle Whitmire on Feb 17, 2012
Copyright:Attribution Non-commercial


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Rel: 02/17/2011 Notice:
This opinion is subject to formal revision before publication in the advance sheetsof
Southern Reporter
. Readers are requested to notify the
Reporter of Decisions
, AlabamaAppellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), ofany typographical or other errors, in order that corrections may be made before the opinionis printed in
Southern Reporter
OCTOBER TERM, 2011-2012 ____________________ 1100192 ____________________  Amy Hamilton, individually and on behalf of her stillborn son v.Dr. Warren Scott et al. Appeal from DeKalb Circuit Court(CV-06-149)
PARKER, Justice.Amy Hamilton, individually and on behalf of her stillbornson, sued Dr. John Blakely Isbell, Dr. Steven Coulter, Dr. WarrenScott, and the Isbell Medical Group ("IMG") (Dr. Isbell, Dr.Coulter, Dr. Scott, and IMG are hereinafter sometimes referredto collectively as "the defendants"), as well as several
11001922fictitiously named defendants, claiming that their negligentand wanton acts had wrongfully caused the death of her son andalso caused her to suffer emotional distress. The DeKalbCircuit Court entered a summary judgment in favor of thedefendants, holding that a wrongful-death action could not bemaintained for the death of an unborn child who died before hewas viable. The trial court also held that Hamilton was not inthe "zone of danger" and, thus, could not recover damages foremotional distress. We reverse in part, affirm in part, andremand.Facts and Procedural HistoryA. Hamilton's pregnancy and medical careIn December 2004, Hamilton, pregnant with her second child,sought prenatal care from IMG, which had provided Hamilton withprenatal care during her first pregnancy. On Monday, January10, 2005, Hamilton contacted IMG; she explained that she and herseven-year-old son had a rash that she believed might be "fifthdisease," an infection caused by human parvovirus B19. The nextday, January 11, 2005, Hamilton had blood drawn at IMG and wastold that she would be notified of the results. On Friday,January 14, 2005, an IMG employee told Hamilton over thetelephone that Hamilton "had been exposed to fifth disease and
11001923had the parvovirus" and that, consequently, she needed toimmediately schedule an ultrasound, to be followed by anultrasound every 2 weeks for the next 10 weeks. Hamiltonunderstood this every-two-weeks ultrasound schedule to havebeen ordered by Dr. Isbell; Dr. Isbell confirmed as much in hisdeposition.On Monday, January 17, 2005, Hamilton went to IMG for thefirst scheduled ultrasound as well as a consultation regardingtreatment for fifth disease. However, the doctor with whomHamilton was scheduled to meet was unavailable; Hamilton wasalso unable to undergo the scheduled ultrasound because thetechnician was leaving early. Hamilton's request that she besent to the adjoining hospital for an ultrasound was denied byan IMG employee; instead, she was told to wait for her nextappointment two weeks later.Hamilton returned to IMG two weeks later, on Monday,January 31, 2005; during the appointment, the doctor she metwith, Dr. Coulter, listened to the unborn child's heartbeat andtold Hamilton that an ultrasound was unnecessary. He alsoexplained to Hamilton the potential complications of fifthdisease and the procedure for potential treatment of her unbornchild, if necessary.

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