Medical Malpractice in Alabama: Practical Considerations from a Plaintiffs Perspective

Introduction

Medical malpractice cases are extremely difficult, time-consuming and expensive. While we frequently hear about substantial verdicts against manufacturers, lending companies and trucking companies, it is rare to hear about similar verdicts against doctors and hospitals. Accordingly, the wise attorney thoroughly investigates his client’s factual claims as well as the most recent case law before filing a medical malpractice complaint and beginning a long, arduous journey to a rarely successful result, especially in the situations where a doctor is the main tortfeasor. What follows is an outline of the most important considerations with regard to a very important decision that the practitioner must make: Do I have a probable chance of success in pursuing this medical malpractice claim?

(NOTE: The purpose of this paper is to offer practical tips and pointers for the average practitioner deciding whether to handle a medical malpractice case. It is not intended to be a thorough treatise or review of the law as it pertains to malpractice claims.)

Contents

1. Is it a Medical Malpractice Case?

2. Do You Have a Case?

3. Who to Sue and When to Sue

4. Discovery

5. Expert Medical Witness

6. Trial Considerations

Is it a Medical Malpractice Case?

The first question the attorney must ask himself when presented with a factual scenario from a client pertaining to what seems to be negligent healthcare, is: Does this case fall under the Alabama Medical Liability Act of 1987, as amended? Obviously, medical doctors and hospitals fall under the Act. Nursing homes are also included as healthcare providers under the Act. Rosemont v. Marshall, 481 So. 2d 1126 (Ala. 1986.) Recent case law has included chiropractors, pharmacies and blood testing laboratories in the definition of “healthcare provider.” Ex parte Rite Aid of Alabama, Inc., 2000 WL 356335 (Ala.); Mashner v. Pennington, 729 So. 2d 262 (Ala. 1998); Anderson v. Alabama Reference Laboratories, 2000 WL 1174214 (Ala.). The bottom line is this: If you intend to pursue a claim against an entity or person that provided some sort of healthcare service to your putative plaintiff, the current Supreme Court will rule that it is a medical malpractice case.

One recent case which needs to be mentioned is Mock v. Dr. Robert Allen, 2000 WL 869601 (Ala.). In this case, a patient filed a case against a physician alleging that he sexually assaulted him during an office procedure. Mock argued that the Medical Liability Act did not apply to his case because the claimed assault did not constitute “medical treatment” under the Act. Because Dr. Allen’s alleged sexual misconduct occurred during the office visit, the Court ruled that the alleged misconduct fell within the confines of the Act. In an unusually rare, dissenting opinion, Justice See correctly determined that the action should not fall within the Act since there was no medical reason for the doctor to touch Mock’s genitals. It appears that the Supreme Court is sending a relatively strong message with regard to possible claims against physicians; namely, that virtually any action against a healthcare provider will fall under the Medical Liability Act whether or not it has any possible nexus to medical treatment.

Do You Have a Case?

This is the most important consideration that needs to be thoroughly addressed before filing a medical malpractice lawsuit. Once you get into a medical malpractice lawsuit, it is very hard to get back out. What follows is a laundry list of the most important factors to be taken into consideration when determining whether you will agree to file a medical malpractice suit.

A. Severity of injury

Whether it is a case against a nursing home, hospital, or doctor, the severity or level of injury is a very important consideration. If your client comes in and wants to sue a doctor for a breach of the standard of care, you must determine (assuming arguendo it is a good case of liability) whether the resulting jury verdict or settlement will substantially outweigh the combination of your expenses and attorneys fee. Otherwise, the economics would not justify the bringing of the suit. If, for example, your client’s medical bills from the breach are approximately $10,000.00, and he has only a minor impairment that is directly related to the breach, the case would not be worthwhile to pursue. Most expert witnesses routinely charge anywhere from $5,000.00 to $25,000.00 during the pendency of the case, which would include their review of the medical records, giving a deposition and testifying at trial. Accordingly, unless the probable jury verdict or settlement substantially outweighs what is deducted from the client’s portion, the suit would not be worthwhile to pursue. In the above example, the case should not be pursued because a probable jury verdict or settlement would barely be above the expenses incurred in the case. If your client’s probable jury verdict or settlement is $100,000.00, then your client should be counseled that the expenses may run as high as $30,000.00 to $60,000.00, and the resulting compensation may not be worth a two-year period of litigation and a four-day trial.

On a personal note, 95% of all of the medical malpractice cases I refuse to handle are based on the above economic consideration. I see breaches of the standard of care by healthcare providers on a daily basis, but the resulting injury rarely is substantial enough to warrant the prosecution of a medical malpractice suit.

B. Who will you be suing?

This is another important consideration. Juries are much more hesitant to hold against a doctor than they are a hospital or a nursing home. Verdicts against doctors in the State of Alabama are extremely rare. There are some counties in North Alabama, most notably Winston, Cullman, Blount and others, where a verdict against a doctor has either never occurred or is in the distant past. Whatever consideration and thoughtfulness is given to pursuing a claim against a hospital or nursing home should be doubled in intensity when the putative defendant is a doctor.

C. Where will the suit be filed?

First, why is this question important? Because the venue may play a role in deciding whether the case has merit. Some counties are more conservative than others and mitigate against pursuing the claim.

Alabama law requires that suits against healthcare providers be brought in the county where the alleged act or omission occurred. Ala. Code § 6-5-546, (1975). For example, if your client received negligent treatment in Bibb County at the emergency room and was then transported to UAB for four long months of convalescence and treatment, the medical malpractice suit would still have to be filed in Bibb County, although the bulk of the medical treatment was provided in Jefferson County. This is true even though venue may be proper in Jefferson County as to another defendant who is not a healthcare provider. Ex parte Father Walter Memorial Child Care Center, 656 So. 2d 369 (Ala. 1995).

D. Did the doctor’s alleged breach of the standard of care involve a judgment call?

Possibly the hardest case to pursue against a healthcare provider, particularly a doctor, involves those situations where he/she could have gone either way with their medical treatment. This is frequently referred to as a judgment call. The best cases of malpractice involve a situation where it is alleged the doctor essentially failed to do exactly what the standard of care dictated. In those situations where there were alternative methods of treatment which are also acceptable in the medical community, then the case should be looked at with great scrutiny. Also, be aware of Alabama Pattern Jury Instruction 25.04, which is a charge on alternative methods of treatment.

A classic example of a judgment call involves cases of misdiagnosis or failure to diagnose. It is not infrequent for doctors to misdiagnose heart problems as being gastrointestinal or musculoskeletal in nature. These types of cases are extremely difficult.

E. When you explain the factual scenario to a lay person, do they display a distinctive gasp and shock?

As much as we may want to believe that juries apply the judge’s jury charges with staunch rigidity, the reality is that the jury will apply their own experience and common sense to the scenario. For example, if your client was admitted to the hospital for a broken ankle and came out a quadriplegic, or if he was admitted to the hospital for the flu and had his arm amputated, you will probably win the case no matter how many experts testify that there was no breach of the standard of care. In my experience, I have found that the occurrence of medical negligence is very common. The good practitioner should distinguish between the definition of what constitutes negligence for the medical community and what constitutes negligence for a jury. The latter is the main question to be considered before filing a medical malpractice suit. In other words, what is “medical malpractice” for a doctor may not be considered so by a jury, and vice versa. Outline the factual scenario for your most objective friends and family and see what reaction they emit: They are your best experts.

Procedural Considerations as to Who to Sue and When to Sue

A. Statute of limitations considerations

Generally speaking, suit must be brought against a healthcare provider within two years after the date of the act or omission that constitutes medical negligence. Ala. Code § 6-5-482 (1975). For death cases, the two-year period only begins to run at the time of death. Hall v. Dr. Chi, 2000 WL 1273684 (Ala.). There are two competing considerations with regard to when to file suit. First, it is a good idea to file suit well before the running of the statute of limitations so that you can isolate any and all other potential tortfeasors, particularly those emergency room physicians whose names are not in the medical records. On the other hand, it is extremely unwise to sign and file a medical malpractice complaint without thoroughly investigating the merits of the claim. Err on the side of delay!

B. Who do you sue?

Obviously, you will want to add in any parties whom your experts have determined breached the standard of care. However, it is usually not a good idea to start the lawsuit off with all of the defendants involved. For example, if you have a possible case against an anesthesiologist, radiologist and the hospital itself, it is the better approach to sue the least culpable defendant first. In other words, sue the defendant who you feel is less responsible than the other two. Conduct your initial discovery, and hopefully the initial defendant will “dump” on the other two defendants and/or otherwise provide you information that would not be so easily ascertainable if you sue all the defendants en masse. When defendants are sued at the same time and are in the same predicament, they tend to work together and avoid the aforementioned “dumping.”

Discovery

Discovery in a medical malpractice case progresses just like any other case. You will need to depose all of the healthcare providers you have sued as well as propound specific and detailed interrogatories and requests for production seeking any and all information that may be relevant to your claim. It is also very helpful to purchase medical textbooks and become thoroughly conversant with the area of the alleged breach, i.e., general surgery, radiology, etc., so you can better search for helpful information when deposing the defendants and their experts.

The most significant drawback to handling a medical malpractice claim is the limited discovery into the background of the healthcare provider. Under Ala. Code § 6-5-551 (1975), no discovery may be had on any prior acts or omissions of the healthcare provider unless they are included in the complaint. Obviously, you cannot include them in the complaint if they are not discoverable in the first place. The prophylactic protection afforded healthcare providers under Section 6-5-551 is, in my opinion, unconstitutional and a violation of the equal protection clause. It gives healthcare providers a virtual immunity to punitive damages. For example, if you are suing a doctor who has lost his license on four separate occasions and has been sued on 10 separate occasions for conduct identical to what is involved in your case, none of this is admissible at trial! In Mock v. Allen cited above, the Court ruled that evidence of other inappropriate sexual conduct by the defendant physician was inadmissible even though the instant claim alleged similar conduct. In Ex parte Golden, 628 So. 2d 496 (Ala. 1993), the plaintiff was precluded from discovering instances of prior similar, fraudulent acts which would have been directly relevant to his claim. Accordingly, the only way a plaintiff can ever obtain punitive damages against a healthcare provider is in those rare instances where the conduct alleged is so egregious and wanton that evidence of other similar acts is unnecessary.

There is a recent case which has put a small chink in the protection to healthcare providers afforded by Ala. Code § 6-5-51 (1975). In Ex parte McCollough, 747 So. 2d 887 (Ala. 1999), the Court allowed the plaintiff to discovery prior similar incidents, reasoning that they would be relevant to the allegations of a systematic failure of the nursing home to provide regular treatment and care. The distinction between McCollough and other cases is based, in my belief, on the specificity with which the complaint is drafted. Make sure your complaint specifically alleges prior incidents and you will probably be entitled to discover information about them.

Experts

The most complicated part of a medical malpractice claim is deciding which experts to use. Over the years, while the statutory language has remained essentially unchanged (except for doctors), case law has undergone an evolution that has become more and more restrictive as a result of the changing of the Court from its more liberal days to its more recent, conservative leanings.

Ala. Code § 6-5-548 (1975) provides as follows:

(B) Notwithstanding any provision of the Alabama Rules of Evidence to the contrary, if the health care provider whose breach of the standard of care is claimed to have created the cause of action is not certified by an appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself or herself out as a specialist, a "similarly situated health care provider" is one who meets all of the following qualifications:

1. Is licensed by the appropriate regulatory board or agency of this or some other state.
2. Is trained and experienced in the same discipline or school of practice.
3. Has practiced in the same discipline or school of practice during the year preceding the date that the alleged breach of the standard of care occurred.

(C) Notwithstanding any provision of the Alabama Rules of Evidence to the contrary, if the health care provider whose breach of the standard of care is claimed to have created the cause of action is certified by an appropriate American board as a specialist, is trained and experienced in a medical specialty, and holds himself or herself out as a specialist, a "similarly situated health care provider" is one who meets all of the following requirements:

1. Is licensed by the appropriate regulatory board or agency of this or some other state.
2. Is trained and experienced in the same specialty.
3. Is certified by an appropriate American board in the same specialty.
4. Has practiced in this specialty during the year preceding the date that the alleged breach of the standard of care occurred.

(D) Notwithstanding any provision of the Alabama Rules of Evidence to the contrary, no evidence shall be admitted or received, whether of a substantive nature or for impeachment purposes, concerning the medical liability insurance, or medical insurance carrier, or any interest in an insurer that insures medical or other professional liability, of any witness presenting testimony as a "similarly situated health care provider" under the provisions of this section or of any defendant. The limits of liability insurance coverage available to a health care provider shall not be discoverable in any action for injury or damages or wrongful death, whether in contract or tort, against a health care provider for an alleged breach of the standard of care.

(E) The purpose of this section is to establish a relative standard of care for health care providers. A health care provider may testify as an expert witness in any action for injury or damages against another health care provider based on a breach of the standard of care only if he or she is a "similarly situated health care provider" as defined above. It is the intent of the Legislature that in the event the defendant health care provider is certified by an appropriate American board or in a particular specialty and is practicing that specialty at the time of the alleged breach of the standard of care, a health care provider may testify as an expert witness with respect to an alleged breach of the standard of care in any action for injury, damages, or wrongful death against another health care provider only if he or she is certified by the same American board in the same specialty.

Picking the appropriate expert for a medical malpractice case is the most important decision you will make! Without a “similarly situated” expert, you will face a summary judgment or directed verdict and face a potential legal malpractice claim. What is a “similarly situated” expert? Obviously, you should try to have an expert whose education, experience and background mirrors the defendant. To do otherwise would place you and your client at great risk. Several cases are instructive on this point.

In Johnson v. Price, 743 So. 2d 436 (Ala. 1999), the Court affirmed a summary judgment for a doctor because the plaintiff’s expert was not certified by the exact same American board. Both doctors were general surgeons with similar backgrounds and experience. However, the plaintiff’s expert was certified by the American Board of Osteopathy, not the American Board of Surgery. This distinction, although without any substance or real relevance to the issues, was enough of a difference to justify the summary judgment for the doctor.

What if you are suing a company and not an individual? Obviously, you cannot put a “company” on the stand as an expert. This question was answered in a thoughtful and insightful opinion by Judge Myron Thompson in Barton v. American Red Cross, 829 F. Supp. 1290. He wrote as follows:

Where the non-individual defendant has acted through an individual … the Court must, to the extent possible, anthropomorphize the non-individual defendant in order to determine whether the witness is sufficiently similarly situated under subsections (b) and (c) to be competent to offer expert testimony. Id. at 1301.

In those situations, therefore, where a hospital or nursing home is being sued, the focus should be on the individuals whose conduct is alleged to be negligent. In the average case against a hospital or nursing home, this will require you to have a nursing expert with background and training similar to the alleged individual tortfeasor. See generally, Crown Investments, Inc. v. Reid, 740 So. 2d 400 (Ala. 1999). For example, if you are suing a nursing home because your client’s decedent was dropped by a nurse on the way to the shower, your expert should be a nurse with “hands-on” experience with geriatric patients. A nursing home administrator or psychiatric nurse would not be qualified under the Court’s current interpretations.

Also, your expert must have worked in the same discipline or practice during the year preceding the date of negligence. Recent case law only requires work in the discipline at some point during the preceding year. Arguably, this could mean only one day. Crowne Investments, Inc. v. Reid, 740 So. 2d 400 (Ala. 1999).

Another question I am often asked deals with work settings. In other words, must your nursing expert work in an office setting (versus a hospital) if the defendant works in an office setting? This was answered in the negative by Justice Maddox in Dowdy v. Florence Clinic, Inc., 612 So. 2d 1149 (Ala. 1992). However, do not rely on the current Court to affirm this approach. Your expert should still mirror the experience and education of the defendant.

Trial Considerations

While most cases against nursing homes and hospitals settle, suits against physicians rarely do. If you sue a doctor, you will need to prepare for trial at every stage of the discovery process. There are several considerations which are important when preparing for trial.

There is an inherent problem that you will face at trial in almost any medical malpractice case: Your experts are from New York or California; theirs are from Alabama. Traditionally, doctors in Alabama will not testify against other doctors in Alabama. It is important that you condition the jury as to this problem, especially in your closing argument. One way to do this is to elicit testimony from the defendant’s experts about how many times they have testified against doctors in Alabama (the answer will be “none”).

A motion in limine is an indispensable tool in any medical malpractice case. Properly drafted and ruled upon, it can help level the playing field at trial. Attached hereto is a sample motion that may be useful in your case. Most of the motion will be granted if the trial judge follows the law. Without such a motion, you can count on the defense attorney to personalize his/her client with impermissible references to information not admitted into evidence. Be ready to object at any moment, before the jury hears it.