Medical Negligence, Similarly Situated Healthcare Provider, § 6-5-548(c)(3) Ala. Code 1975 and Necessity of Expert Testimony in Medical Misrepresentation Case
Hannah v. Naughton, [Ms. 1190216, Sept. 25, 2020] ___ So. 3d ___ (Ala. 2020). The Court (Bolin, J.; Parker, C.J., and Wise, Sellers, and Stewart, JJ., concur) affirms a summary judgment entered by the Etowah Circuit Court in favor of doctors Michael J. Naughton and Terisa A. Thomas on claims alleging medical negligence arising from misrepresentations in interpreting a pap smear as warranting a complete hysterectomy.
The Court affirms the entry of summary judgment in favor of the doctors upon concluding plaintiff failed to present expert testimony from a similarly situated healthcare provider within the meaning of § 6-5-548(c)(3) (which provides that a similarly situated health-care provider is one that “[i]s certified by an appropriate American board in the same specialty”) and because plaintiff’s claims required proof by way of expert testimony of a similarly situated healthcare provider because the claims were not such “where want of skill or lack of care is so apparent…as to be understood by a layman, and requires only common knowledge and experience to understand it.”
Specifically, the Court finds plaintiff’s proffered expert deficient because he was not board certified in the same specialty as the defendant at the time he gave his testimony by deposition. Ms. **24-37. The Court holds:
Section 6-5-548(c)(3) expressly states that a similarly situated health-care provider is one who “[i]s certified by an appropriate American board in the same specialty.” Section 6-5-548(e) expressly states that a proffered expert may testify against a defendant health-care provider “only if he or she is certified by the same American board in the same specialty.” Subsections 6-5-548(c)(3) and (e) are plain and unambiguous, and under no reasonable reading could those subsections be interpreted to allow testimony from a proffered expert who “was” once board certified in the same specialty as the defendant health-care provider but who was no longer so certified at the time the proffered expert provided his or her testimony. Subsections 6-5-548(c)(3) and (e) clearly require a similarly situated health-care provider who is proffered as an expert to be board certified in the same specialty as the defendant health-care provider at the time the proffered expert testifies. Had the legislature intended to require the proffered expert to simply be board certified at any time in the past it could have easily so provided in the statute. Section 6-5-548(c)(4) requires that a similarly situated health-care provider proffered as an expert be one who “[h]as practiced in this specialty during the year preceding the date that the alleged breach of the standard of care occurred.” The fact that the legislature chose to tie, in subsection (c)(4), the action to a specific point in time and chose to so qualify § 6-5-548(c)(3) and (e) evidences its intention that a proffered expert may not testify as a similarly situated health-care provider against a defendant health-care provider unless the proffered expert is board certified in the same specialty as the defendant health-care provider at the time the proffered expert gives his or her testimony.
The Court also rejects the plaintiff’s contention that expert testimony was not needed given her claims that Dr. Thomas and Dr. Naughton falsely told her that she had cervical cancer and that she had no option but to have a full hysterectomy. After first reviewing case law (Ms. **38-41) explaining the exceptions to the general rule that the plaintiff in a medical-malpractice action must proffer independent medical expert testimony, the Court distinguishes Ex parte Sonnier, 707 So. 2d 635 (Ala. 1997) (Ms. **42-44) and holds:
“…To the extent Dr. Thomas and Dr. Naughton made an alleged false representation to Hannah that she had cervical cancer, that representation was made based on their interpretation of the abnormal Pap smear and the treatment protocol dictated by that interpretation. Dr. Thomas and Dr. Naughton’s interpretation of the abnormal Pap smear and resulting treatment recommendations based on that interpretation require a knowledge and understanding that is beyond the common knowledge, understanding, and experience of a layperson, and this case is thus distinguishable from the facts of Ex parte Sonnier.
Accordingly, we conclude that Hannah’s claims do not fall within the layperson exception to the rule that a plaintiff must support his or her medical-malpractice claim with expert testimony from a ‘similarly situated health-care provider’ in relation to the defendant medical professional."