In
Hrynkiw v. Trammell, [Ms. 1101099, May 11, 2012] __ So. 3d __(Ala. 2012), the Supreme Court
affirmed a $2.15 million dollar judgment for the plaintiffs in a medical
malpractice case. The case involved a fusion surgery to repair a herniated
disk in Mr. Trammell's back. Plaintiff alleged the surgery was not
performed properly, and as a result, caused him to develop cauda equina
syndrome. Within hours of his surgery, the plaintiff began exhibiting
classic symptoms of cauda equina syndrome. However, his doctor waited
10 days to perform a second surgery. As a result, the plaintiff alleged
he was left with very limited mobility, severe weakness in his hips and
legs, impotence and suffering from urinary and fetal incontinence. The
plaintiffs filed suit against Dr. Hrynkiw alleging that the doctor breached
the standard of care in performing the initial fusion surgery and also
in his dilatory diagnosis and treatment of the plaintiff's cauda equina
syndrome. The case was tried to a jury in Jefferson County, Alabama, which
returned a verdict in favor of the plaintiffs for $2.15 million compensatory
damages. The defendant doctor appealed, arguing that 1) the trial court
should have granted his motion for judgment as a matter of law relating
to plaintiffs' claims concerning the post-fusion surgery because Mr.
Trammell had not presented substantial evidence that his injuries were
caused by the negligent delay in performing the post-fusion surgery; and
2) the trial court erred by allowing the plaintiff's expert to reference
medical treatises during his direct examination which he did not rely
upon as a basis for his opinions. The Supreme Court rejected the doctor's
claim that there was not substantial evidence that his delay in performing
post-fusion surgery treatment caused the plaintiff's injuries. In
a detailed discussion, the Court explained that while Alabama does not
recognize a cause of action for the loss of chance to achieve a better
medical outcome, statistical evidence of success and survival rates may
still play a role in proving that a medical negligence victim's condition
was probably adversely affected by the deviation from the standard of
care. Thus, the Court found substantial evidence of causation from the
delayed treatment. The plaintiff's expert testified that while he
could not guarantee that the plaintiff would have recovered fully had
he received timely post-fusion surgery treatment, 80% of patients like
plaintiff make a complete or delayed partial recovery. Based on this and
other evidence, the plaintiff's expert testified that "[t]here
is no doubt in my mind the delay had a detrimental outcome on [the plaintiff's]
long-term neurologic status. Based on the statistical evidence
and expert testimony, the Supreme Court concluded that the plaintiff had offered substantial
evidence that his injuries were caused by the defendant doctor's dilatory
treatment. As a result, the Court affirmed the denial of the doctor's
motion for judgment as a matter of law. The Supreme Court also rejected
the doctor's claim that the trial court erred by allowing the plaintiff's
expert to discuss medical treatises during his direct examination that
he had not relied on in forming his opinions. Plaintiff argued that Al.
R Evid. 803(18) (addressing hearsay exceptions for learned treatises)
does not require that an expert rely on a medical treatise in forming
his or her opinions. Instead, Rule 803(18) permits medical treatises to
be used to bolster, corroborate, or better explain an expert's opinions.
The Court agreed with the plaintiff, noting that for many years Alabama
courts have permitted parties to use learned treatises to support an expert's
opinions. As a result, the Court found no error in the trial court's
decision to allow the plaintiff to discuss the medical treatises during
the direct examination of his expert.
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