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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.

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