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MEDICAL MALPRACTICE - SEXUAL ASSAULT - O'REAR V. B.H.

In O'Rear v. B.H., [Ms. 1090359 Mar. 11, 2011] __ So. 3d __(Ala. 2011), the Supreme Court of Alabama affirmed a jury verdict in favor the plaintiff awarding compensatory damages of $1 million and punitive damages of $2 million. In this case, the plaintiff, B.H., claimed that Dr. Delane O'Rear had engaged in sexual conduct with him in exchange for prescription drugs since the time he was in the eighth grade until he was 21 years old. B.H. claimed he developed a drug addiction as a result of the continuing supply of prescription drugs provided to him by Dr. O'Rear in exchange for sexual gratification. B.H. claimed severe mental and emotional distress, and brought claims against Dr. O'Rear for negligence, wantonness, medical malpractice, assault and the tort of outrage. The jury returned a verdict in favor of B.H. On appeal, Dr. O'Rear argued (1) that all of B.H.'s claims are encompassed within the Alabama Medical Liability Act and were, therefore, subject to the standard of proof set out in the Act; (2) that B.H. failed to offer expert testimony as required by the Act regarding the breach of the standard of care and proximate causation; (3) that B.H.'s assault claim was not supported by sufficient evidence to warrant consideration by a jury; (4) that evidence supporting B.H.'s tort of outrage claim was insufficient; (5) that a new trial was required because at least one of B.H.'s claims was legally insufficient; and (6) that the jury's $1 million compensatory damage award was excessive. The Supreme Court held that Dr. O'Rear's acts of prescribing medications to B.H. in return for sexual conduct that occurred while B.H. was being treated by Dr. O'Rear were governed by the proof requirements of the Medical Liability Act. However, the Court held that the record contained substantial evidence from which a jury could have inferred that some of B.H.'s claims arose outside the context of a doctor/patient relationship and those claims would not be governed by the proof requirements of the Act. In regards to Dr. O'Rear's other arguments on appeal, the Court held that Dr. O'Rear, himself, provided all the necessary expert testimony as required under the Act, thus there was substantial evidence to support B.H.'s claims; under the facts of this case a sexual assault on a minor was sufficient to support claims of outrage; and the $1 million compensatory damage award was not excessive. The Court affirmed the entire jury award in favor of the plaintiff.

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