JUSTICES PONDER SHIELD LAW
Feb 10, 1999
High court hears arguments on cases that could loosen malpractice immunity
for state doctors, other health-care workers.
By Sean Reilly
Capital Bureau
MONTGOMERY - The Alabama Supreme Court heard two options Tuesday for handling
a bundle of malpractice cases with far-reaching ramifications for health-care
providers at the University of South Alabama Medical Center and other
state-affiliated hospitals:
Set a new, federally based standard for giving state employees limited
immunity from lawsuits.
Leave the existing standard just where it is.
"The law of Alabama is exactly where we need it to be," said
Stan Starnes, a Birmingham lawyer defending physicians at Huntsville Hospital
and the University of Alabama's student health center in Tuscaloosa.
Starnes and another defense lawyer, Tom Nolan of Mobile, both cited a
1990 case in which the state's high court rule in favor of a Searcy
Hospital psychiatrist sued by the estate of a patient who had committed
suicide while under his care. In that instance, the court concluded that
it would, "hamper the decision-making process and impose undesirable
shackles on agencies of government" to expose the psychiatrist to
liability for the use of his professional discretion and judgment.
But David Wirtes, a Mobile lawyer for a mother alleging that two USA obstetrics-gynecology
residents botched her daughter's delivery, said the state should move
to a standard stemming from the 1988 US. Supreme Court decision. That
ruling gives government employees immunity only if their actions are driven
by official policy.
Nine state supreme courts have adopted that standard, Wirtes said. Courts
elsewhere consider that "hands-on medical care is not policy-based
and therefore not worthy of immunity," he said.
After almost two hours of arguments, Chief Justice Perry Hooper Sr. complimented
both batteries of lawyers on their presentations, but gave no indication
when the nine-member court might rule.
The justices' verdict could decide how much liability, if any, health-care
employees at state facilities face for mistakes made in treating patients.
Couples with follow-up court rulings, Alabama's 1901 Constitution
gives legal immunity to state employees who make "discretionary decisions"
or judgment calls, while on the job. Unlike some states, however, Alabama
courts have not carved out a separate legal territory for "medical
discretion," which some states do not immunize, as opposed to general
governmental discretion, according to a professor at the Cumberland School of Law.
Wirtes called the trail of previous state court decisions on the subject
"murky" and urged high court to start afresh with the federal standard.
Some need for clarification was evident in the four cases appealed Tuesday.
In Wirtes' suit, for example, Mobile County Judge Joseph "Rusty"
Johnson in June agreed that the USA doctors had immunity and threw out
the suit. But in a separate case against a USA physician involving a woman
who died from complications from a cesarean section, Circuit Judge Christ
Galanos refused a grant a similar claim.
Lawyers for the plaintiffs argued that the state's legal stake in
protecting doctors ended as soon as they began treating patients.
"You have to have some state interest, and there just is no state
interest in this," Greg Burge of Birmingham, representing the estate
of a woman who died after a cesarean. When Associate Justice Champ Lyons
Jr. of Mobile prodded him by asking whether defense lawyers might respond
by saying that the state wants to train young doctors, Burge answered:
"How would providing immunity to residents further that goal?"
But Starnes countered that "the function of government is whatever
government undertakes to do."
If the justices should rule in the plaintiffs' favor, Starnes suggested,
the result would be an erosion in the shield of immunity throughout the
state's work force.
"Whatever you will do in this case will fundamentally affect the
circumstances of virtually every state employee," he said.