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The People's Law School
Medical Malpractice
by Michael A. Worel
Cunningham, Bounds, Crowder, Brown & Breedlove, L.L.C.
1601 Dauphin street, Mobile, Alabama 36604
April 3, 2006
OUTLINE
I. A History of Medical Malpractice Actions in Alabama
A. The Standard of Care adopted by the Alabama Supreme Court in 1901 (McDonald v.
Harris):
1. The reasonable and ordinary care, skill, and diligence
2. That physicians and surgeons
a. in the same general neighborhood
b. in the same general line of practice
3. Ordinarily have and exercise
a. in a like case
b. under like conditions.
B. Causation – Plaintiff had to prove that the physician's negligence "probably caused the
injury."
1. "There must be something more than a mere possibility--something more than one
possibility among others--that the negligence complained of was the cause of
the injury. There must be some evidence to the effect that such negligence
probably caused the injury." Pappa v. Bonner, Alabama Supreme Court
1958.
2. If prompt diagnosis and treatment probably would have increased the patient's
chances, plaintiff has met this burden of proof: "although prompt diagnosis
and treatment might not have prevented a massive heart attack, such could
have delayed or even prevented a terminal attack and impeded further damage
to the heart." Waddell v. Jordan, Alabama Supreme Court 1974.
C. In 1975, the Alabama Legislature adopted the Alabama Medical Liability Act, now found
at sections 6-5-480 through 6-5-488 of the Code of Alabama.
1. Statute of limitations:
a. A plaintiff has two years after the act or omission giving rise to the
claim to file a complaint.
b. Minor exceptions
(1.) For example, if the malpractice was not discovered and could
not reasonably have been discovered, the plaintiff has until six
month after the discovery, but not more than four years after
the act. § 6-5-482.
(2.) A minor under 19 has four years or until his or her 21st
birthday, whichever comes first, and a child under four has
until his or her eighth birthday. § 6-5-482.
2. Standard of care: "to exercise such reasonable care, diligence and skill as
physicians, surgeons, and dentists in the same general neighborhood, and in
the same general line of practice, ordinarily have and exercise in a like case."
§ 6-5-484.
D. In 1980, the Alabama Supreme Court held that the "same general neighborhood" standard
requires the physician to follow the standard of the national medical community.
(Zills v. Brown and Baker v. Chastain)
E. In 1987, the Alabama Legislature adopted the Alabama Medical Liability Act of 1987,
§§ 6-5-540 through 6-5-552 of the Alabama Code.
1. The Act applies to "health care providers." §6-5-542(1).
2. The standard of care is defined as "that level of such reasonable care, skill, and
diligence as other similarly situated health care providers in the same general
line of practice, ordinarily have and exercise in like cases." § 6-5-542(2).
3. Plaintiff's burden of proof was raised from the old "scintilla of evidence" standard
to "substantial evidence." §§ 6-5-548(a), 6-5-549.
4. Witnesses who can testify against a health care provider are now limited to
"similarly situated health care providers," defined as follows:
a. Under § 6-5-548(b), if the defendant is not board-certified as a specialist,
a qualified witness is one who:
(1) Is licensed by the appropriate regulatory board or agency of this
or some other state.
(2) Is trained and experienced in the same discipline or school of
practice.
(3) Has practiced in the same discipline or school of practice during
the year preceding the date that the alleged breach of the
standard of care occurred.
b. Under § 6-5-548(c), if the defendant is board-certified as a specialist, a
qualified witness is one who:
(1) Is licensed by the appropriate regulatory board or agency of this
or some other state.
(2) Is trained and experienced in the same specialty.
(3) Is certified by an appropriate American board in the same
specialty.
(4) Has practiced in this specialty during the year preceding the date
that the alleged breach of the standard of care occurred.
c. In Medlin v. Crosby in 1991, the Alabama Supreme Court held, "for
purposes of determining whether a 'health care provider' is a
'specialist,' that the trial court should look to whether the defendant
'health care provider' is board certified in the specialty or discipline or
school of practice that covers the area of the alleged breach."
5. A medical malpractice complaint has to be more specific than any other kind of
complaint, and a plaintiff's ability to discover information is more limited
than in any other kind of lawsuit. § 6-5-551.
6. The plaintiff's insurance is admissible, but the defendant's is not.
a. Under § 6-5-545, "evidence that the plaintiff's medical or hospital expenses
have been or will be paid or reimbursed shall be admissible as
competent evidence." Thus, if plaintiff has insurance that has paid
his or her hospital and doctor bills, this fact comes into evidence.
(1.) In 1996, the Alabama Supreme Court held unconstitutional a
similar provision for general civil actions. American Legion
Post No. 57 v. Leahey.
(2.) In 2000, the Alabama Supreme Court overruled American Legion
v. Leahey and held that this statute is constitutional. Marsh
v. Green, 2000.
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b. Under § 6-5-548(d), "no evidence shall be admitted ... concerning the
medical liability insurance ... of any witness ... or of any defendant."
F. In 1996, the Alabama Legislature adopted the Alabama Medical Liability Act of 1996
amending §§ 6-5-548 and 6-5-549 and adding § 6-5-549.1.
1. As to witnesses against specialists, the legislature added a sentence to § 6-5-
548(e), which says: "It is the intent of the Legislature that in the event the
defendant health care provider is certified by an appropriate American board
or in a particular specialty and is practicing that specialty at the time of the
alleged breach of the standard of care, a health care provider may testify as an
expert witness with respect to an alleged breach of the standard of care in any
action for injury, damages, or wrongful death against another health care
provider only if he or she is certified by the same American board in the same
specialty." This further restricts expert testimony against specialists.
2. The court must now instruct the jury that the jury must "be reasonably satisfied
by substantial evidence that the health care provider failed to comply with
the standard of care and that such failure probably caused the injury or death
in question." § 6-5-549. Thus, the trial court first has to rule that the
plaintiff has introduced "substantial evidence" for the case to even go to the
jury; then the jury has to be "reasonably satisfied by substantial evidence"
that malpractice probably caused the injury or death. This jury standard is
higher than other civil cases, which require the plaintiff only to prove his or
her case "to the reasonable satisfaction of the jury."
G. A 1999 Act limited punitive damages in all civil actions except for wrongful death actions
1. The Alabama Legislature amended § 6-11-21 in 1999 to provide for certain limits
on punitive damages, "in all civil actions" except for wrongful death actions
or actions alleging intentional infliction of physical injury.
2. The Alabama Medical Liability Act of 1987 included limits on punitive damages,
but they were held unconstitutional, and have now been replaced by § 6-11-
21. See Shiv-Ram, Inc. v. McCaleb, 892 So.2d 299 (Ala. 2003); Mobile
Infirmary Medical Center v. Hodgen, 884 So.2d 801 (Ala. 2003).
II. How A Lawyer Analyzes a Possible Case, Develops It, and Tries It.
A. There Are No Frivolous Medical Malpractice Lawsuits in Alabama – the burden on
a plaintiff to prove a case and get to a jury is so high that only serious cases are
worth filing.
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B. An overview of the case
1. A Plaintiff
a. The Patient, or
b. A Patient Who Has Died and Was Related to the Plaintiff.
2. Defining Damages and Injury
a. Damages are the money a plaintiff recovers
b. Injury is the harm the plaintiff suffers
c. Death is a unique injury – Alabama law allows only punitive damages
3. Elements of a Lawsuit
a. Standard of Care
b. Breach
c. Causation
d. Injury
4. Standard of Care
a. Health Care Provider
b. Evidence From a Similarly Situated Health Care Provider
(1) Expert Witness
(2) Expenses of Expert Witnesses
c. Initial Review of Records
5. Breach of the Standard of Care
6. Probably Caused
5
7. Injury or Death
C. Drafting and Filing the Complaint
1. Sufficient Specificity To Meet § 6-5-551
a. "A detailed specification and factual description of each act and
omission alleged by plaintiff to render the health care provider liable
to plaintiff."
b. "Fair notice of the claim asserted against the defendant and against
which he has to defend." Mikkelsen v. Salama, Alabama Supreme
Court 1993.
c. "Although every element of the cause of action need not be stated
with particularity, the plaintiff must give the defendant health care
provider fair notice of the allegedly negligent act and must identify the
time and place it occurred and the resulting harm." Mikkelsen v.
Salama.
2. Venue – Usually the Defendant's Home County
a. "The action must be brought in the county wherein the act or
omission constituting the alleged breach of the standard of care by the
defendant actually occurred." § 6-5-546, Alabama Code.
b. If plaintiff alleges that acts of malpractice occurred in more than one
county, the action must be brought in the county where the patient
resided at the time of the act or omission. § 6-5-546.
D. Discovery
1. This is the legal term for procedures by which each party gets information
from the other party.
2. It includes:
a. Interrogatories – questions one side asks the other.
b. Requests for admission – asking the other side to admit a fact that is
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not in dispute.
c. Requests for production – asking the other side to produce
documents. There may be a lot of documents or records produced by
the defendants that the plaintiff has to sort through.
d. Depositions – A lawyer for one side asks questions of a witness with
a court reporter present to make a record of the questions and
answers. Depositions can be used at trial in place of live testimony,
and frequently are in medical malpractice cases, because there is a rule
that depositions of doctors can be used so their treatment of patients
is not interrupted.
e. Expert disclosures – When the time comes, each side tells the other
the names and qualifications of each expert the party will use and the
substance of the opinions the experts will give in their testimony. A
party usually then takes a deposition of the opposing party's experts.
3. This is a long, complicated, and expensive process.
4. The goal for the plaintiff is to develop "substantial evidence" to present at
trial.
E. Trial
1. Pre-trial skirmishes
a. Summary judgment motion – the defendant tries to convince the court
that the plaintiff will not be able to present substantial evidence and
that the case should therefore be thrown out before a trial even starts.
b. Motions to exclude evidence – both sides try to keep the other from
mentioning in front of the jury inflammatory evidence that will be
inadmissible. The court holds a hearing on these motions before the
trial begins and rules on whether the evidence will be admissible or
not. This minimizes the amount the lawyers have to argue in front of
the jury.
2. Jury selection – this is a very important process by which both sides try to
find out whether potential jurors will be biased or otherwise should not sit on
the case. After questioning the potential jurors, the attorneys go through the
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process of "striking a jury" from the larger jury pool, leaving 12 jurors and at
least one or two alternates.
3. Opening statements – each side tells the jury what they expect to prove.
4. Evidence for the plaintiff
a. Fact witnesses.
b. Expert witnesses.
c. Documents and medical records.
5. Evidence for the defendant.
6. Closing arguments.
7. The judge instructs the jury on the law that applies to the case.
8. The jury deliberates and returns a verdict.
F. Post-trial motions
1. Judgment as a matter of law – the defendant can still argue that the plaintiff
did not present substantial evidence in support of each element of his or her
cause of action, and if the judge agrees, the case can be thrown out even if a
jury has returned a verdict for the plaintiff.
2. Motion for new trial – the losing party can argue to the trial judge that the
judge made errors in, for example, admitting or excluding evidence and that
those errors caused prejudice to the losing party. If the judge agrees, he or
she can order a new trial for the losing party.
3. Motion for remittitur. If the defendant thinks the jury awarded too much, the
defendant can argue that the judge should reduce the verdict. There is no such
motion for a plaintiff who thinks the jury did not award enough, except where
the jury failed to award enough to cover the plaintiff's undisputed out-of-
pocket expenses.
4. These motions are made in the alternative, so the judge can either throw the
case out completely, order a new trial, or reduce the amount.
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E. Appeal – if the losing party thinks the judge erred in any ruling during or after the
trial, they can appeal. For example, even if the trial judge denies a motion to reduce
the amount of the verdict, and even if there was no error during the trial, the appellate
court can reduce the verdict if it considers the verdict excessive.
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