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SHOULD USA DOCTORS BE EXEMPT FROM SUITS?

Feb 9, 1999

Mobile Register

Should USA doctors be exempt from suits?

Alabama Supreme Court looks at immunity of state-employed physicians today

By Buster Kantrow, Staff Reporter

Since her birth in June 1994, Kaytlin Wimpee has suffered from a seizure disorder and motor defects on the left side of her body, her mother Christy Johnston says.

Ms. Johnston blamed the problems on a difficult delivery at the University of South Alabama Medical Center. In 1996, she filed a lawsuit against Scott Striplin and Felicia Stella, the doctors who handled the birth.

The two physicians deny that they erred. But, in a pre-emptive strike, they also asserted they also could not be sued, because the delivery occurred at a state hospital.

In June, a trial judge in Mobile agreed.

Citing previous decisions of the state's highest court, Judge Joseph "Rusty" Johnston dismissed Ms. Johnston's lawsuit, ruling that the physicians - as state employees making discretionary decisions about how to deliver the child - were entitled to immunity from lawsuits. The two Johnstons are not related.

Today, Ms. Johnston's appeal of that ruling, and appeals in three similar cases, will be before the Alabama Supreme Court, collectively confronting the justices with the question: How much, if any, liability should doctors, nurses and other employees at state-owned medical facilities bear for the actions? And when?

"This is a very significant issue," with implications both for medical providers and their patients at state hospitals, said Edward C. Martin, a professor of torts law at Cumberland Law School in Birmingham.

Alabama's constitution, like many, shields the state from civil lawsuits. "The State of Alabama shall never be made a defendant," reads Article 1, Section 14 of the 1901 Constitution. Court decisions extended that immunity to state employees making "discretionary decisions," or judgment calls, in the course of their duties.

A county commissioner, for instance, cannot be sued for voting higher taxes, or a legislator for appropriating money to education rather than roads.

At issue today will be whether state-employed doctors should have the same protections from second-guessing: Should doctors have to answer for their decisions about when to take blood samples, how to interpret X-rays, or when to administer a particular medicine, particularly if the doctor appears wrong in retrospect?

In prior decisions, the Alabama court has not drawn a distinction between "governmental discretion," which is uniformly immunized, and "medical discretion," which in many other states is not immunized, Martin said.

The professor called the courts' position thus far a "unique perspective."

If the court sides with the USAMC physicians, Martin said, it could "create a separate class of protected doctors who would be protected from doing what would otherwise be negligence because they are employed by the state."

In the Wimpee case, Ms. Johnston's allegations that the doctor's were negligent were never tested in court, because the case was dismissed before trial.

The two sides in that case disagree over whether the physicians exercised discretion while delivering Kaytlin.

In court papers, Ms. Johnston's attorneys, David G. Wirtes and Michael A. Worel of Mobile, contend that the two doctors - who were residents, or doctors in training, at USAMC - had been instructed to follow hospital and industry regulations for birth-delivery and erred by failing to do so. Any discretion they did exercise was medical and should not be automatically shielded from scrutiny, the lawyers say.

Broad immunity for state medical providers, the lawyers argue in their briefs, leaves patients who suffer negligent care without same remedy available to patients at private facilities.

In their filings, the doctors' Mobile attorneys deny that they ignored any applicable regulations while delivering Kaytlin Wimpee. And they content that the doctors had "to exercise their clinical judgment in caring for" the child and should therefore qualify for discretionary immunity from liability.

Judge Johnston agreed with the doctors, ruling "that a state-employed physician's exercise of professional judgment and difficult decision making during the treatment ... is a protected discretionary function."

In their brief to the Supreme Court, the doctors defend such immunity as necessary to help the state train and maintain adequate numbers of physicians.

Wirtes declined to comment on the appeal. Kathleen Miller, an attorney for the physicians, also declined to comment.

Also on appeals today will be Judge Chris Galanos' refusal to dismiss a medical-malpractice suit against another USAMC physician, who also asserted that he was immune as a state employee. Galanos ruled that the doctors actions were not discretionary.

That case, involving the death of a woman as a result of complications from a Cesarean section, is on hold, pending the Supreme Court's ruling.

A third case on appeal today involves allegations that doctors at a University of Alabama student health center overlooked a student's testicular cancer, which proved fatal. The doctors successfully asserted immunity in the trial court.

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