Anderson v. Alabama Reference Laboratories

• Decision Date: 18 August 2000
• Citation: 778 So.2d 806
• Parties: Thomas Mark ANDERSON and Cynthia S. Anderson v. ALABAMA REFERENCE LABORATORIES.
• Court: Alabama Supreme Court

778 So.2d 806

Thomas Mark ANDERSON and Cynthia S. Anderson v. ALABAMA REFERENCE LABORATORIES.

1982182.

Supreme Court of Alabama.

August 18, 2000.

James R. McKoon, Jr., Phenix City, for appellants.

Frank J. Stakely and Patrick M. Shegon of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellee.

SEE, Justice.

The plaintiffs, Thomas Mark Anderson and his wife Cynthia S. Anderson, appeal from a summary judgment in favor of the defendant Alabama Reference Laboratories ("ARL"). We affirm.

I.

On September 13, 1995, Thomas Mark Anderson went to his physician, Dr. Keith Fuller, a family practitioner, complaining of various symptoms, including coughing up yellow-greenish sputum. Dr. Fuller diagnosed pneumonia and treated Anderson with antibiotics. He instructed Anderson to return on September 22. Anderson, however, returned two days later, on September 15, complaining of fatigue and high fever. Dr. Fuller again diagnosed pneumonia. As part of his treatment, Dr. Fuller collected a sputum specimen and sent it to ARL for testing. ARL tested the specimen, and the results were normal. ARL reported the results to Dr. Fuller. Anderson saw Dr. Fuller again on September 18 and 22. After the fourth visit, Anderson believed he had recovered from the pneumonia; he did not return to Dr. Fuller for any further treatment.

On November 5, Dr. Fuller received another report from ARL concerning the results from the testing of Anderson's sputum specimen. That report stated that Anderson's sputum specimen was presumptively positive for tuberculosis. Dr. Fuller contacted Anderson's wife and asked that she and Anderson come to his office. They did. Dr. Fuller told Anderson that he had tuberculosis and prescribed various drugs to treat the disease. Dr. Fuller also told Anderson to report his disease to the local county health department. Dr. Fuller told Anderson, in the presence of Anderson's wife, who was then seven-months pregnant with the couple's first child, that persons with tuberculosis may also be infected with the human immunodeficiency virus (HIV), and he recommended that Anderson submit to an HIV test. Dr. Fuller instructed Anderson that, because tuberculosis is a highly communicable disease, he should tell any persons with whom he had close, daily contact that they should be tested for tuberculosis.¹

After his meeting with Dr. Fuller, Anderson reported to the local county health department, where he was required to sign a form promising to take the drugs for treatment of tuberculosis for one year. Anderson began taking the drugs. As a result of taking the drugs for tuberculosis, he suffered several side effects, including a rash, dizziness, fatigue, nausea, and repeated vomiting.

On November 21, Dr. Fuller received another report from ARL. That report stated that Anderson's sputum specimen tested positive for tuberculosis and that ARL's finding of tuberculosis had been confirmed by the Alabama Department of Health State Laboratory. Dr. Fuller regarded this report as definitive proof that Anderson had tuberculosis.

Approximately six weeks after he had initially diagnosed Anderson with tuberculosis, Dr. Fuller received a telephone call from either ARL or the State Health Department (Dr. Fuller said he does not recall which) and by that call was informed that DNA testing had been performed on Anderson's sputum sample. The DNA testing was performed by a microbiologist with the University of Alabama at Birmingham, as part of a state-sponsored study to determine the patterns of infection through Alabama. As a result of the DNA testing, it was discovered that Anderson's sputum specimen had been contaminated with another donor's specimen and that the tuberculosis bacterium in his specimen had come from that other person. Dr. Fuller then informed Anderson that the results of the test had been incorrect and that he did not have tuberculosis.

On October 7, 1997, Anderson and his wife filed this action against ARL in the Russell Circuit Court. They alleged that ARL had negligently, wantonly, or recklessly performed the tuberculosis testing on Anderson's sputum specimen and that it had committed "legal fraud" in reporting the results of the testing and had thereby caused him to suffer severe emotional distress and economic losses and had thereby caused his wife to suffer, among other harm, a loss of consortium. ARL moved to transfer the case, pursuant to Ala.Code 1975, § 6-5-546, a section of the Alabama Medical Liability Act of 1987 ("AMLA"),² from Russell County to Montgomery County, arguing that ARL's place of business is located in Montgomery County and that all of the acts or omissions alleged by Anderson occurred in that county. ARL also moved to dismiss the plaintiffs' fraud claims, arguing that the action was in substance a medical-malpractice action governed by the AMLA and, therefore, that the fraud claims were superseded by the AMLA, as provided by § 6-5-552. Anderson and his wife filed no opposition to ARL's motion to transfer or its motion to dismiss their fraud claims. The Russell Circuit Court transferred the action to the Montgomery Circuit Court, and that court granted ARL's motion to dismiss the Andersons' fraud claims.³

Thereafter, ARL moved for a summary judgment on the plaintiffs' remaining claims. After a hearing on the summary-judgment motion, the trial court granted ARL's motion and entered a summary judgment in its favor. At the hearing, the trial judge ruled from the bench that the plaintiffs' action was subject to the AMLA and that Dr. Linda Pifer, their expert witness proffered in support of their claims, was not competent to testify concerning the alleged breach of the applicable standard of care. The plaintiffs appealed.

II.

The Andersons' appeal presents three issues:

I. Whether ARL falls within the definition of "other health care provider" for purposes of the AMLA.

II. Whether the Andersons' proffered expert witness, Dr. Linda Pifer, was a "similarly situated health care provider" for purposes of the AMLA and, thus, competent to testify as to the alleged breach of the applicable standard of care.

III. Whether the Andersons' action falls within one of the recognized exceptions to the requirement that the plaintiff in a medical-malpractice action present expert medical testimony on the alleged breach of the applicable standard of care.

We first address the applicability of the AMLA to the defendant ARL. Because the second and third issues are interrelated, we address those issues together.

A.

The Andersons argue that ARL is not a "health care provider" within the meaning of the AMLA. The AMLA defines "health care provider" as "[a] medical practitioner, dental practitioner, medical institution, physician, dentist, hospital, or other health care provider as those terms are defined in Section 6-5-481." Ala.Code 1975, § 6-5-542(1). We agree with the Andersons, and ARL presents no argument to the contrary, that ARL does not fall within the definitions of the terms "medical practitioner," "dental practitioner," "medical institution," "physician," "dentist," or "hospital." See Ala.Code 1975, § 6-5-481. Thus, the question is whether ARL comes within the definition of "other health care providers." Section 6-5-481(8) defines "other health care providers" as "[a]ny professional corporation or any person employed by physicians, dentists, or hospitals who are directly involved in the delivery of health care services."

Although this Court has not expressly held that a reference laboratory is within the definition of "other health care provider," we have implicitly recognized that such an entity is subject to the AMLA. See Marsh v. Wenzel, 732 So.2d 985 (Ala.1998); Guthrie v. Bio-Medical Laboratories, Inc., 442 So.2d 92 (Ala.1983). In Marsh, this Court applied the statute of limitations provided under the AMLA, Ala.Code 1975, § 6-5-482, to a pathology laboratory in an action involving the laboratory's alleged failure to detect cancer in a tissue sample delivered to it by the plaintiff's physician for examination. In Guthrie, this Court applied the AMLA to a laboratory in an action involving the laboratory's alleged mistyping of the plaintiff's blood specimen, which had been sent to the laboratory by the plaintiff's physician for prenatal analysis.

In Cackowski v. Wal-Mart Stores, Inc., 767 So.2d 319 (Ala.2000), this Court held that a pharmacist is an "other health care provider" for purposes of the AMLA. In arriving at this holding, this Court construed the term "employed," as it is used in § 6-5-481, to encompass more than employment or contractual relationships between physicians and persons involved in the delivery of health-care services. See id. This Court construed "employed" to apply to a person of whom the physician makes use, or whose services the physician engages. See id. Accordingly, this Court concluded that a pharmacist is a healthcare provider for purposes of the AMLA "[b]ecause a pharmacist and/or a pharmacy is inextricably linked to a physician's treatment of his patients" and "the dispensing of drugs is an integral part of the delivery of health care services to the public." Id.

Similarly, in this case, Dr. Fuller employed, or engaged the services of, ARL to test a sputum specimen of his patient, Mr. Anderson. The purpose of having ARL test Anderson's specimen was directly linked to Dr. Fuller's diagnosis and treatment of Anderson. Thus, ARL's testing of Anderson's specimen was an integral part of Dr. Fuller's delivery of health-care services to Anderson. Therefore, we hold that ARL falls within the AMLA's definition of "other health care provider."

B.

In a medical-malpractice action, once the defendant health-care provider offers in his, her, or its behalf expert testimony that makes a prima facie showing of a lack of negligence, the health-care provider is entitled to a summary judgment, unless the plaintiff produces substantial evidence indicating negligence. Se...