Alabama Medical Liability Act of 1987, § 6-5-540, et seq. and Necessity of Expert Testimony

Peterson v. Triad of Alabama, LLC, [Ms. 1190982, June 30, 2021] __ So. 3d __ (Ala. 2021). The Court (Stewart, J.; Parker, C.J., and Bolin and Wise, JJ., concur; Sellers, J., concurs in the result) affirms the entry of an order granting summary judgment in favor of Triad of Alabama, LLC d/b/a Flowers Hospital (“Triad”) by the Houston Circuit Court in a medical-malpractice action brought by John & Brenda Peterson.

To satisfy the burden of proving a medical-malpractice claim by substantial evidence, a plaintiff

“ordinarily must present expert testimony from a ‘similarly situated health-care provider’ as to (1) ‘the appropriate standard of care,’ (2) a ‘deviation from that standard [of care],’ and (3) ‘a proximate causal connection between the [defendant’s] act or omission constituting the breach and the injury sustained by the plaintiff.’ Pruitt v. Zeiger, 590 So. 2d 236, 238 (Ala. 1991) (quoting Bradford v. McGee, 534 So. 2d 1076, 1079 (Ala. 1988)). The reason for the rule that proximate causation must be established through expert testimony is that the issue of causation in a medical-malpractice case is ordinarily ‘beyond “the ken of the average layman.” ’ Golden v. Stein, 670 So. 2d 904, 907 (Ala. 1995), quoting Charles W. Gamble, McElroy’s Alabama Evidence, § 127.01(5)(c), p. 333 (4th ed. 1991). The plaintiff must prove through expert testimony ‘that the alleged negligence “probably caused the injury.” ’ McAfee v. Baptist Med. Ctr., 641 So. 2d 265, 267 (Ala. 1994).”

Ms. *8-9, quoting Lyons v. Walker Regional Medical Center, 791 So. 2d 937, 942 (Ala. 2000).

“An exception to requirement of presenting expert-medical-testimony exists where the lack of care is so apparent as to be within the ken of the average layman.” Ms. *9, quoting Jones v. Bradford, 623 So. 2d 1112, 1114-15 (Ala. 1993). This exception was discussed in Ex parte HealthSouth Corp., 851 So. 2d 33 (Ala. 2002) and in Collins v. Herring Chiropractic Center, LLC, 237 So. 3d 867 (Ala. 2017).

The Court rejects Plaintiffs’ contention that they met their burden of proving a deviation from the standard of care through submission of excerpts from Mr. Peterson’s medical records. Ms. *11, citing Ala. R. App. P. 28(a)(10) and State Farm Mut. Auto Ins. Co. v. Motley, 909 So. 2d 806 (Ala. 2005)(explaining consequences of insufficient citations to legal authority or argument).

The Court also rejects the contention that the doctrine of res ipsa loquitur required denial of the motion for summary judgment as the appellant’s brief cites only general propositions of law regarding the doctrine and does not explain how their case presents an exception to the general rule, outlined above, requiring expert testimony in medical-malpractice actions. Ms. *11-12, citing, inter alia, Ex parte Riley, 464 So. 2d 92 (Ala. 1985)(it is well established the general propositions of law are not considered “supporting authority” for purposes of Rule 28(a)(10)).

Finally, the summary judgment order is due to be affirmed because the appellant’s brief does not address the trial court’s determination that Plaintiffs failed to satisfy their burden as to the breach of the standard of care through expert medical testimony as to “what is or what is not the proper practice, treatment, and procedure.” Ms. *12, quoting McGill v. Szymela, [Ms. 1190260, Dec. 31, 2020], __ So. 3d __, __ (Ala. 2020).

Merely pointing to a passage contained within a learned treatise is insufficient. While “medical treatises are admissible, as a pre-condition or a predicate to their admission, the rule requires that the parties seeking to introduce medical books authenticate them as ‘standard works within that profession.’” Ms. *13, quoting Johnson v. McMurray, 461 So. 2d 775, 779-80 (Ala. 1984).

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