Medical Negligence Claim Against Board-Certified Physician - Similarly Situated Healthcare Provider


McGill v. Szymela, [Ms. 1190260, Dec. 31, 2020], ___ So. 3d ___ (Ala. 2020). In a plurality opinion, the Court (Parker, C.J.; Stewart, J., concurs; Bolin, Sellers, and Mendheim, JJ., concur in the result) affirms the Jefferson Circuit Court’s exclusion of the Plaintiffs’ expert. The McGills alleged that Dr. Szymela, a board-certified oral and maxillofacial surgeon, failed to properly perform Janice McGill’s temporomandibular-joint-replacement (“TJR”) surgery.

The Court reiterates that “‘[i]n determining whether the trial court properly precluded a designated expert from testifying under § 6-5-548 [, Ala. Code 1975], we apply the [excess]-of-discretion standard of review.’” Ms. *5, quoting Tuck v. Health Care Auth. of Huntsville, 851So. 2d 498, 501 (Ala. 2002).

The McGills identified Dr. Louis Mercuri, a world-renowned expert in TJR surgery. However, the trial court excluded Dr. Mercuri because of § 6-5-548(c)(4)’s requirement that an expert must have “practiced in [the same] specialty during the year preceding the date that the alleged breach of the standard of care occurred.” Ms. **7-8. Noting that the statute does not define “practiced” and after surveying pertinent cases, the opinion explains

Read together, the lesson of these cases is clear: in a case involving a medical-malpractice claim based on “hands-on” medical practice, a trial court has wide latitude in deciding whether to admit or exclude as witnesses medical experts whose work in the year preceding the breach was at the margins of active medical practice.

Here, the McGills’ claim against Dr. Szymela was based on his “hands-on” medical practice. Dr. Mercuri’s most similar work during the year preceding the surgery was his involvement in a TJR surgery in Brazil. However, as related above, the evidence before the trial court contained only vague information about the nature of Dr. Mercuri’s participation in that surgery. In view of that absence of clarity, along with the general nature of Dr. Mercuri’s post-retirement work discussed above, the trial court could reasonably have concluded that Dr. Mercuri’s work during that year did not constitute having “practiced” for purposes of § 6-5-548(c)(4).

Ms. **15-16. The opinion notes that Dowdy v. Lewis, 612 So. 2d 1149 (Ala. 1992) has been “interpreted as creating an exception for ‘highly qualified’ experts, exempting them from the statute’s requirement that the expert must have ‘practiced’ in the same discipline or school of practice. See HealthTrust, Inc. v. Cantrell, 689 So. 2d 822, 827 (Ala. 1997); Tuck, 851 So. 2d at 502; Springhill Hosps., Inc. v. Critopoulos, 87 So. 3d 1178,1189 (Ala. 2011).” Ms. *12 n.4. “The McGills have not relied on Dowdy as creating such an exception,” so the Court did not consider whether the exception was applicable to Dr. Mercuri’s testimony. Ibid.

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