Medical Negligence Claim Against Board Certified Physician – § 6-5-548(c), Ala. Code 1975

Nall v. Arabi, [Ms. 1210312, Aug. 19, 2022] __ So. 3d __ (Ala. 2022). The Court (Mendheim, J.; Parker, C.J., and Shaw, Bryan, and Mitchell, JJ., concur) affirms the Tuscaloosa Circuit Court’s summary judgment dismissing Vivian and Myrus Nall’s claims alleging medical malpractice against Arash Arabi, a podiatrist certified by the American Board of Podiatric Medicine (“the ABPM”). The circuit court determined that the Nalls failed to offer the testimony of a board-certified podiatrist as required by § 6-5-548(c), Ala. Code 1975.

In affirming, the Court notes “[t]he Nalls concede that [their expert] Dr. Krych was not certified by the ABPM when he gave his deposition testimony. They contend, however, that the circuit court exceeded its discretion (1) by not granting a continuance to allow Dr. Krych to resolve the certification issue; (2) by not equitably estopping the ABPM from declaring that Dr. Krych is not certified; or (3) by not allowing the Nalls the opportunity to substitute another expert concerning the standard of care.” Ms. *11.

The Court first holds “the slowness of the ABPM in engaging Dr. Krych about his certification status confirms the circuit court’s decision not to delay a ruling on Dr. Arabi’s summary-judgment motion until some indefinite date on which Dr. Krych’s certification might be resolved. The circuit court did not exceed its discretion by denying the Nalls’ request for a continuance .” Ms. *12.

The Court rejects the estoppel argument and notes “the Nalls fail to cite even a single case in which a court employed equitable estoppel against or in favor of nonparties to a case.” Ms. *14. The Court also notes the requirement that a party invoking estoppel “must have acted with diligence to learn the truth,” and that “Dr. Krych made no inquiries of the ABPM until he received a copy of the affidavit from the executive director of the ABPM in this case.” See Ms. **14-15.

Finally, the Nalls argue they should be allowed time to locate and identify a different expert because the rules of civil procedure “disregard technicality and form in order that the civil rights of litigants may be asserted and tried on the merits.’” Ms. *17. The Court notes that “we deal here with a statutory requirement of a medical-malpractice cause of action. Plaintiffs in such cases should understand that they usually need expert testimony to establish a breach of the standard of care by a defendant physician and that, if that defendant is certified as a specialist, a plaintiff’s expert also must be certified in that specialty …. [W]e do not believe that the circuit court exceeded its discretion in refusing to grant the Nalls additional time to substitute a new expert witness on the standard of care in the place of Dr. Krych.” Ms. **17-18.

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