Williams v. Barry, et al., [Ms. 1180352, June 26, 2020] __ So. 3d __ (Ala. 2020). The Court (Wise, J.; Parker, C.J., and Shaw, Bryan, Sellers, Mendheim, Stewart, and Mitchell, JJ., concur) reverses the Montgomery Circuit Court’s judgment as a matter of law for the defendants entered at the close of plaintiff’s case in wrongful death case under the Alabama Medical Liability Act.
“‘The plaintiff in a medical-malpractice action is required to present substantial evidence indicating both that the defendant health-care provider failed to comply with the standard of care and that such failure probably caused the injury or death in question.’” Ms. *10, quoting Hill v. Fairfield Nursing & Rehab. Ctr., LLC, 134 So. 3d 396, 401 (Ala. 2013), quoting in turn Mobile OB-GYN, P.C. v. Baggett, 25 So. 3d 1129, 1133 (Ala. 2009).
In reversing the judgment as a matter of law, the Court holds that “when viewing the evidence in a light most favorable to Williams, [plaintiff’s expert] Dr. Nguyen’s testimony presented substantial evidence to create a factual dispute requiring resolution by the jury as to whether Dr. Barry breached the applicable standard of care by recommending and performing an unnecessary surgery on Li’Jonas.” Ms. *15.
As to proximate cause, the Court concludes that
“To present a jury question, the plaintiff [in a medical-malpractice action] must adduce some evidence indicating that the alleged negligence (the breach of the appropriate standard of care) probably caused the injury. A mere possibility is insufficient. The evidence produced by the plaintiff must have ‘selective application’ to one theory of causation.” Ms. *16, quoting Cain v. Howorth, 877 So. 2d 566 (Ala. 2003)(internal quotation marks omitted).
After extensively reviewing the expert testimony concerning the cause of Li’Jonas’s death, including an autopsy performed two years after his death, the Court concludes the plaintiff presented substantial evidence to create a factual dispute requiring resolution by the jury as to the issue whether the surgery performed by Dr. Barry was the proximate cause of Li’Jonas’s death.”