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Medical Negligence and Similarly Situated Healthcare Providers

Spencer v. Remillard, [Ms. 1180650, Sept. 4, 2020] ___ So. 3d ___ (Ala. 2020). The Court (Mendheim, J.; Parker, C.J., and Wise, Bryan, Stewart, and Mitchell, JJ., concur; Sellers, J., concurs in part and dissents in part as to the rationale and concurs in the result; and Shaw, J., concurs in the result) reverses a judgment as a matter of law entered by the Shelby Circuit Court at the close of a medical negligence wrongful death action arising from an allegation of a failure to timely diagnose and treat prostate cancer against Dr. Remillard and Helena Family Medicine. This 77-page opinion reviews the requirements for expert testimony against healthcare provider defendants who qualify as both non-specialists (§ 6-5-548(b), Ala. Code 1975) and, in particular, sub-section (b)(3) of the statute (“has practiced in the same discipline or school of practice during the year preceding the date that the alleged breach of the standard of care occurred.”); and specialists (§ 6-5-548(c), Ala. Code 1975) and, in particular, sub-section (c)(4) (“has practiced in this specialty during the year preceding the date that the alleged breach of the standard of care occurred.”). With respect to “the same discipline or school of practice” requirement in § 6-5-548(b)(3) for non-specialists, the Court explains:

…[d]oes “the same discipline or school of practice” in § 6-5-548(b)(3) mean that which is identical to the defendant, including the type of lab test to be reported to a patient?

The question of what constitutes “the same discipline or school of practice” for purposes of the applicable standard of care of a CMA is similar to the issue we addressed earlier with regard to whether Dr. Haines was qualified to offer an opinion as to the standard of care for a family-medicine practitioner because he was not working in a private, community-based family-medicine practice during the year preceding the breach of the standard of care. On that issue, we concluded that “this specialty” in § 6-5-548(c)(4) refers to the board-certified specialty practiced by the defendant doctor rather than the exact setting in which the defendant doctor practiced that specialty. Likewise, a CMA who carries out a task that is very similar, though not identical, to the task of the defendant CMA is still “practic[ing] in the same discipline or school of practice.” §6-5-548(b)(3).

Ms. *66. With respect to the “practiced in this specialty during the year preceding…” requirement in § 6-5-548(c)(4) for specialists, the Court concludes “that the requirement in § 6-5-548(c)(4) that an expert must have ‘practiced in this specialty’ in the year preceding the alleged breach of the standard of care refers to the actual practice of the specialty at issue rather than the exact setting in which the defendant doctor practices the specialty.” Ms. *43.

Commenting upon the sufficiency of an expert’s standard of care testimony, the Court reiterates “that the testimony of an expert witness in a medical malpractice case must be viewed as a whole, and that a portion of it should not be viewed abstractly, independently, or separately from the balance of the expert’s testimony.” Ms. *48, quoting Downey v. Mobile Infirmary Medical Center, 662 So. 2d 1152, 1154 (Ala. 1995).

The Court also reiterates the test for proximate causation in a case subject to the Medical Liability Act, i.e., “the plaintiff must prove, through expert medical testimony, that the alleged negligence probably caused, rather than only possibly caused, the plaintiff’s injury.” Ms. *51, quoting Kraselsky v. Calderwood, 166 So. 3d 115, 119 (Ala. 2014). The Court notes “[t]he standard for proving causation in a medical-malpractice action is not proof that the complained-of act or omission was the certain cause of the plaintiff’s injury. Instead, as this Court has frequently reiterated, the standard is one of the ‘probable’ causes…”. Ms. *52, quoting Hill v. Fairfield Nursing & Rehab. Ctr., LLC, 134 So. 3d 396, 406 (Ala. 2013).

Commenting upon the sufficiency of an expert’s causation testimony, the Court reiterates “[o]ur cases make it abundantly clear, however, that a portion of the testimony of the plaintiff’s expert cannot be viewed ‘abstractly, independently, and separately from the balance of his testimony.’” “[W]e are to view the [expert] testimony as a whole, and, so viewing it, determine if the testimony is sufficient to create a reasonable inference of the fact the plaintiff seeks to prove.” Ms. **56-57 quoting Hrynkiw v. Trammell, 96 So. 3d 794, 800-01 (Ala. 2012). The Court reminds us that “the issue of causation in a malpractice case may properly be submitted to the jury where there is evidence that prompt diagnosis and treatment would have placed the patient in a better position than [he] was in as a result of inferior medical care.” Ms. *59, quoting Hamilton v. Scott, 278 So. 3d 1180, 1186 (Ala. 2018).

Because plaintiff presented competent expert testimony regarding breaches of the standard of care and causation, the JML in favor of the healthcare providers is reversed and the cause is remanded for a new trial.

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