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Saturday, March 28, 2020

Ala. SC rules expert witness not always necessary to prove medical negligence

By John Myers | Mar 2, 2017

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MONTGOMERY, Ala. (Legal Newsline) – The Supreme Court of Alabama has ruled that in cases in which a layperson can understand the consequences of medical negligence, an expert is not needed, reversing a summary dismissal of a medical malpractice case.

On Feb. 17, the Supreme Court of Alabama reversed and remanded a lower court summary judgment in favor of the defendants in Betty Collins v. Herring Chiropractic Center LLC, and Ricardo Herring, an appeal from Jefferson Circuit Court.

The suit states that on July 9, 2012, Betty Collins visited Dr. Ricardo Herring for treatment for her injured knee. Over the course of Collins' visit, Herring's assistant allegedly applied a cold pack directly to Collins' knee. 

Collins claims that she noticed that the cold pack had been retrieved from a refrigerator rather a table, where she had seen it in earlier appointments. She also alleges she observed that this cold pack was much harder than it had been in earlier appointments and instead of cold, the cold pack felt warm against her skin.

Within a few hours of the cold pack's application Collins began to blister in the areas where it had been in contact with her skin and later she developed scarring in the same area, the suit states.

On July 7, 2014, Collins sued the defendants, alleging medical malpractice arising from the application of the cold pack to her knee. The defendants filed a request of summary judgment, arguing that Collins had not designated an expert witness who could authoritatively argue that Herring had breached his duty of care in treating Collins as required under the Alabama Medical Liability Act.

In addition, the defendants argued Collins had not met the necessary standard for a malpractice claim because she did not produce any evidence showing that Herring's treatment fell below the applicable standard of care. The circuit court agreed with the defendants and issued summary judgment in their favor.

Collins appealed, arguing that the circuit court had erred in entering a summary judgment for the defendants. She countered that expert testimony is not required to establish either the standard of care or the causal connection between the defendants' acts and her injuries. 

She argued that Alabama courts have long since settled that there is an exception to the rule requiring expert testimony "in a case where want of skill or lack of care is so apparent ... as to be understood by a layman, and requires only common knowledge and experience to understand it," as stated in Tuscaloosa Orthopedic Appliance Co. v. Wyatt.

The court went on to note that in Ex parte HealthSouth Corp. the exceptions to this rule were clarified to include situations “where the lack of skill is so apparent as to be understood by a layperson, thereby requiring only common knowledge and experience to understand it.”

The court found that the blistering and scarring indicated that some form of negligence was to be found in the application of the cold pack and that the relationship between the application of the cold pack and Collins' injuries was such that it could be understood by a layperson. For this reason the court rejected the summary judgment and remanded the case back to the circuit court.

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