McGathey v. Brookwood Health Services, Inc., [Ms. 1110760, Aug. 2, 2013] ___ So. 3d ___ (Ala. 2013). The operating
room staff attached a recently sterilized and still-hot bar to Ms. McGathey's
arm to immobilize it. The Supreme Court reverses a summary judgment for
the hospital on the grounds that "expert testimony was not necessary
to establish that there was a breach in the standard of care owed McGathey
that resulted in her hand and arm being burned by a metal bar during surgery."
Furthermore, the plaintiff properly relied on the deposition testimony
of the defendants "to raise a question of fact as to whether that
breach was the result of action or inaction by a Brookwood employee."
The court affirmed the judgment for the doctor, however, because he did
not enter the operating room until after the bar was attached and he knew
nothing about it being attached while still hot. Furthermore, the physician's
assistant was not his personal agent under the holding of
Ware v. Timmons, 954 So. 2d 545, 549 (Ala. 2006). The Court affirmed the denial of McGathey's
motion to amend her complaint to substitute the two operating room personnel
for fictitiously named parties. She knew their names a month after the
surgery when she obtained the medical records. She did not substitute
them as defendants until after their depositions three years after the
event. The Court held that this did not constitute due diligence to determine
the true identity of the defendants, so the late amendment could not relate back.