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.
Ms. **35-37.
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."
Ms. **45-46.