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Alabama/The Mobile News

 

Insurance firm wins case in Supreme Court

Justices agree a company can't be sued for perjury; decision the latest move in suit involving operating room death

06/06/02

By GARY McELROY
Staff Reporter

Mobile County prosecutors intent on pursuing St. Paul Fire & Marine on perjury charges have gotten an answer from the Alabama Supreme Court -- they can't.

The ruling by the state's highest court affirmed an earlier decision by the Alabama Court of Criminal Appeals, but did not elaborate, saying simply the lower court's ruling was "correct."

The case stems from a 1993 operating room mishap in which a woman undergoing gallbladder surgery was deprived of oxygen to her brain for so long it sent her into a coma from which she never awoke.

In a 1995 trial, the woman's family successfully sued several persons directly or indirectly involved in the bungled operation, including St. Paul, with whom some of the operating room personnel were insured.

During that trial, anesthesiology nurse Wayne Zimlich claimed under oath the victim went without oxygen from three to five minutes. In a later trial, prompted by Zimlich's suit against the insurance company, among others, for failing to settle the original malpractice suit, he told a different story.

The woman was actually deprived of oxygen for more than 10 minutes, Zimlich testified, swearing he lied at the direction of St. Paul executives and others.

That prompted the state to bring perjury charges against Zimlich, a doctor, a lawyer, St. Paul and some of its executives.

The Supreme Court's ruling followed oral arguments presented to it in April by Mobile attorney Arthur Madden, who represented St. Paul, and lawyers from the Mobile County district attorney's office.

State attorneys argued that the Alabama Code provides for the criminal pursuit of corporations, including charges of perjury against such entities.

In rejecting that premise, the Supreme Court deferred to the opinion written earlier by the criminal appeals court, which said that "upon reviewing the Criminal Code as a whole, we are convinced that the Legislature has found it 'appropriate' to impose criminal liability on corporations only for certain crimes ... those crimes in which the Legislature has specifically provided for corporate liability. Perjury is not one of those.

"More importantly," the lower court wrote, state lawmakers "specifically" and "unambiguously" have imposed criminal liability on corporations for certain crimes, such as those involving obscenity, or the unlawful regulation of gas, electricity and water.

"The Legislature did not expressly state that corporations could be held liable for the various perjury offenses," the criminal appeals court noted, "therefore, there is no corporate criminal liability for perjury."

With this latest decision -- nearly 10 years after the operating room incident -- all involved, except for Zimlich, have now escaped criminal penalties.

Last month, following the nurse's guilty plea to second-degree perjury, Mobile County Circuit Judge James Wood sentenced him to 60 days in jail and stripped his license to practice nursing for two years.

Zimlich has appealed that decision.

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