Alabama 2020 Medical Malpractice Update

The Alabama Supreme Court released several opinions pertaining to medical malpractice claims in 2020. The cases related to a range of topics under the medical malpractice umbrella including expert testimony, proximate causation and burden of proof. Included in there are two cases that were handled by attorneys for Clark, May, Price, Lawley, Duncan, & Paul, LLC. If we can provide any additional information on any of these matters, please feel free to reach out to Walter Price or any of our medical malpractice attorneys.

Similarly Situated Expert Witness

Hanna v. Naughton, 2020 Ala. LEXIS 134*

This case involved claims against a board-certified surgeon in which the patient asserted she underwent an unnecessary surgical procedure based upon the physician’s alleged statement that the patient had cervical cancer. The Supreme Court of Alabama affirmed summary judgment based upon the failure of the plaintiff to provide expert testimony from a similarly situated expert witness establishing that the standard of care had been breached.

Specifically, the case involved interpretation of Ala. Code § 6-5-548(c)(3) which addresses the requirements that an expert witness must meet in order to testify about care provided by a medical specialist. These requirements include being licensed by the appropriate regulatory board or agency of Alabama or some other state, that the physician is trained and experienced in the same specialty, that the expert witness is certified by an American board in the same specialty, and has practiced in this specialty during the year preceding the alleged breach of the standard of care. Undertaking a plain reading of the statute, the Court held that the plaintiff’s expert witness was not qualified as he was not certified by an appropriate American board in the same specialty at the time he provided his expert opinion. The fact that the witness had previously been board-certified was insufficient to meet the mandates of the Alabama Medical Liability Act.

Proximate Causation

Williams v. Barry, 2020 Ala. LEXIS 92*

Here, the Supreme Court of Alabama reversed judgment as a matter of law entered in favor of the defendant physician. The plaintiff asserted that the surgeon performed an unnecessary cholecystectomy which was followed by the patient’s death due to an alleged failure to surgically clip the cystic artery causing bleeding that led to, or contributed to, the patient’s death. Causation testimony was highly disputed, largely because the patient’s body was exhumed more than two years after the death and it was noted during the autopsy that the body was severely decomposed. While the Court found that the plaintiff submitted sufficient evidence to cause a jury question as to the issue of the proximate cause of death, it further noted that the defense expert witness could not completely rule out the possibility that the surgery was a contributing factor in the patient’s death seemingly shifting the burden on the defendant to dispute proximate cause in order to support the judgment as a matter of law.

Need for Expert Testimony

Youngblood v. Martin, 2020 Ala. LEXIS 3*

Here the Supreme Court of Alabama reversed a jury verdict against the physician, Dr. Youngblood, and ordered that the trial court enter judgment as a matter of law. The case arose out of an outpatient sinus surgery following which the patient developed pulmonary edema and subsequent problems with her oxygen saturation. Despite being transferred to the intensive care unit of the hospital, she died four days after the surgery.

In addressing the required proof under Ala. Code § 6-5-548(c), the court confirmed that the plaintiff’s counsel failed to establish that the plaintiff’s expert witness was licensed to practice medicine at the time he gave his testimony. Thus, the testimony was inadmissible and, therefore, plaintiff did not present any evidence to the jury indicating that Dr. Youngblood breached the standard of care or that the breach proximately caused the patient’s death.

Medical Causation Proof

Spencer v. Remillard, 2010 Ala. LEXIS 123*

Here, the Alabama Supreme Court also reversed a judgment as a matter of law entered in favor of the defendant physician. This case involved the alleged failure of a family practice physician to advise the patient of an abnormal, elevated PSA level. Multiple issues were raised at the appellate level, though two are noteworthy.

First, the Supreme Court of Alabama has frequently noted that the plaintiff must prove the alleged negligence probably, not possibly, caused the plaintiff’s injury. However, noting that in cases where there is evidence that prompt diagnosis and treatment would have placed the patient in a better position than he was as a result of inferior medical care, the case may be properly submitted to the jury. Along those same lines, the court noted the apparent limitations presented by a “failure-to-diagnose” the case as information regarding the patient’s prognosis if earlier treatment had occurred is necessarily based upon less evidence than would have been available if that earlier treatment had actually occurred.

Another significant issue addressed by the appellate court involved the qualification of plaintiff’s standard of care expert witness. At the time of the treatment to the patient, the expert witness was practicing as a part of the aerospace residency program at the Naval Air Station in Pensacola, Florida. He testified that he “moonlighted” in urgent care centers, and was not, at the time, practicing in a community-based family practice program and, therefore, he would not have been in the position to be the one to oversee or manage any system of notification patients on a daily basis. While the Alabama Medical Liability Act requires a similarly situated witness practice in the same specialty during the year preceding the date that the alleged breach of the standard of care occurred, the Spencer Court held such refers “to the actual practice of the specialty at issue rather than the exact setting in which the defendant doctor practices the specialty.” *42 (emphasis in original).

HIPAA Does Not Prevent Ex Parte Contact with Healthcare Providers

Brewer v. Crestwood Medical Center, et al. Ex Parte Frudenberger, 2020 Ala. LEXIS 103*

In an important holding addressing informal discovery via ex parte meetings with physicians and other healthcare providers, the Supreme Court of Alabama determined that nothing in Alabama law prohibits counsel, including defense counsel, from seeking ex parte interviews of plaintiff’s treating physicians. Likewise, the Court determined that HIPAA does not prohibit ex parte interviews with treating physicians as long as a qualified protective order satisfying 45 C.F.R. 164.512(e) is in place. The Court did note that there may be exceptional circumstances that, if good cause is shown, may justify the imposition of conditions and/or restrictions on such ex parte interviews though such was not the case here.

Physician’s Actions Outside the Line and Scope of Her Employment

QHG of Enterprise, Inc. d/b/a Medical Center Enterprise v. Amy Pertuit, 2020 Ala. LEXIS 135*

In this case, handled by Clark May Price, the Supreme Court of Alabama reversed and rendered a $300,000.00 verdict entered against Medical Center Enterprise. Plaintiffs claimed that the hospital was vicariously liable for the actions of an employed physician who injected herself into a friend’s child custody issue by accessing prescription drug records for the wife of the friend’s ex-husband.

Since the individual was not a patient of the physician or the hospital, the prescription records were protected by HIPAA. In reversing the jury verdict, the appellate court declined to address whether HIPAA created a private right of action under Alabama law. Instead, the Supreme Court of Alabama determined that the physician’s actions were not in the line and scope of her employment as a hospitalist at Medical Center Enterprise; but, were personally motivated instead. Further finding that the actions provided no benefit to the hospital, the Court held that the hospital could not have ratified the physician’s actions and could not be vicariously liable for her conduct.

Discovery of Other Acts and Omissions Prohibited

Ex Parte BBH BMC, LLC, 2020 Ala. LEXIS 13*

In another case handled by Clark May Price, the Supreme Court of Alabama granted the hospital’s Writ of Mandamus and directed the trial court to vacate its order compelling the hospital to respond to certain Interrogatories and Requests for Production. The case arose out of the suicide by an outpatient psychiatric program patient who leapt to her death from a hospital parking deck. Generally, plaintiff alleged that the hospital breached the standard of care by not providing a safe environment for the patient’s care.

In discovery, plaintiff sought information about contemplated changes and modifications to the parking deck following prior suicides. The plaintiff argued that because information about the earlier suicides was not requested, the prohibition against discovery of other acts and omissions pursuant to the AMLA was not applicable. The Supreme Court of Alabama disagreed. It found that the information sought was “inextricably intertwined” with the other suicides and did not address the alleged breach of the standard of care owed by the hospital to this patient. Thus, the Court ruled that plaintiff was not entitled to the requested discovery.