Craig v. Borcicky

• Decision Date: 26 January 1990
• Citation: 557 So.2d 1253
• Parties: Bernice Burnett CRAIG v. David J. BORCICKY. 88-475.
• Court: Alabama Supreme Court

Page 1253

557 So.2d 1253

Bernice Burnett CRAIG v. David J. BORCICKY.

88-475.

Supreme Court of Alabama.

Jan. 26, 1990.

Ellsworth P. Scales III, Mobile, for appellant.

R. Alan Alexander and Thomas H. Nolan, Jr. of Brown, Hudgens, Richardson, Mobile, for appellee.

Roscoe Roberts, Jr., Huntsville, for amicus curiae.

ALMON, Justice.

Bernice Burnett Craig appeals from a summary judgment entered in favor of Dr. David Borcicky, a licensed doctor of podiatric medicine, in a malpractice action. Craig first went to Borcicky complaining of foot problems on September 13, 1985. Borcicky treated Craig for an ingrown toenail and for a callus on the bottom of her foot. This treatment continued for approximately 11 months; then Borcicky suggested surgery to remove Craig's ingrown toenail, the callus, and a bump. Borcicky performed surgery on Craig in his office on August 14, 1986. Following the surgery, Craig returned to Dr. Borcicky's office several times complaining of swelling and pain. Subsequently, she developed an infection, was hospitalized, and was treated by an orthopedic surgeon, Dr. Zarzour. Craig claims that as a result of the surgery performed by Dr. Borcicky, she has trouble walking and has had to give up her job.

On August 14, 1987, Craig filed an action against Borcicky, alleging that he negligently performed surgery on her feet and that she was not properly informed about the surgical procedures and thus did not give an informed consent to the surgery. Borcicky filed a motion for summary judgment, and the trial court entered summary judgment for Borcicky on July 1, 1988. According to the case action summary sheet, on July 6, 1988, Craig filed a motion to set aside the summary judgment or "in the alternative to extend time to produce an affidavit stating that the services of the designated orthopedic surgeon had been retained." In support of that motion, Craig filed an affidavit of Dr. Zarzour in which he stated that he was prepared to testify regarding the treatment of her feet. On August 19, 1988, the motion to set aside the summary judgment was granted. The case action summary sheet states, "[T]he court further rules that Dr. Zarzour is not an expert." Borcicky renewed his motion for summary judgment on September 19, 1988. Craig filed a deposition of Dr. Zarzour on November 4. The trial court again entered summary judgment in Borcicky's favor on November 30, 1988.

Craig presents two issues on appeal. First, she claims that the trial court erred in not accepting Dr. Zarzour's deposition as expert testimony on her claim against Borcicky. Second, Craig argues that her claim of failure to obtain informed consent presents a question of fact for the jury, thereby precluding summary judgment.

Generally, the question of whether a witness is qualified to give expert testimony is a question left to the discretion of the trial court and the court's ruling will not be disturbed unless it is found that the trial court abused its discretion. Bell v. Hart, 516 So.2d 562 (Ala.1987). The general rule is that a physician of one school of medicine is incompetent to testify in a malpractice case against a physician of another school of medicine. Wozny v. Godsil, 474 So.2d 1078 (Ala.1985); 61 Am.Jur.2d Physicians and Surgeons, § 353, p. 516 (1981). Craig contends that Dr. Zarzour is qualified to evaluate medical problems related to the foot and to treat foot problems because of his orthopedic training. Her argument is based on the fact that podiatrists are not subject to Alabama's Medical Liability Act. Ala.Code 1975, § 6-5-482. Sellers v. Picou, 474 So.2d 667 (Ala.1985). She contends that a podiatrist should be judged by a negligence standard in an action for personal injury rather than by the standard of care defined in the Medical Liability Act at § 6-5-484. She asserts that, because podiatrists are under the shorter personal injury statute of limitations, they should be subject to the personal injury "reasonable person" standard of care as well.

Expert testimony is necessary to show whether Borcicky was negligent in performing the surgery on Craig. "The need for expert testimony does not necessarily depend upon the type of profession which the defendant practices." Tuscaloosa Orthopedic Appliance Co. v. Wyatt, 460 So.2d 156, 161 (Ala.1984). Instead, it is dependent upon whether the average person is able to decide, without expert testimony, whether the procedure followed falls below the acceptable standard of care. Id.

The "reasonable person" standard takes into consideration the circumstances of the defendant's actions. Cox v. Miller, 361 So.2d 1044 (Ala.1978); Standifer v. Pate, 291 Ala. 434, 282 So.2d 261 (1973). It must be presumed that Craig presented herself to Borcicky with the expectation that he would exercise the ordinary skill and care of a competent podiatrist. Podiatry is a specialized skill or profession acquired only through training in schools devoted thereto. See Ala.Code 1975, § 34-24-255. The licensing and practice of podiatry is regulated by Code §§ 34-24-230 through -276, and the unlicensed practice of podiatry is a misdemeanor, § 34-24-270. Therefore, even if we apply a "reasonable person" negligence standard to the practice of podiatry, it must be a "reasonable podiatrist" standard.

While an orthopedic surgeon is presumably familiar with the care and treatment of the human skeletal structure, his training is different from that of a podiatrist. Testimony as to negligence is generally limited to witnesses who are competent practitioners of a defendant's own school, who alone can testify as to the teachings of that school and as to the defendant's conformity to the practices of that school. Whitehurst v. Boehm, 41 N.C.App. 670, 255 S.E.2d 761, 765 (1979); Annot., 85 A.L.R.2d 1022 (1962); Am.Jur.2d Physicians and Surgeons, § 205, p. 340.

This Court addressed an analogous issue in Wozny v. Godsil, 474 So.2d 1078 (Ala.1985). Wozny analyzed the question whether an osteopath was competent to give expert testimony with respect to the standard of care required of a medical doctor. This Court recognized, as an exception to the general rule, that a witness not of the defendant's school may be competent to testify where he is knowledgeable of the methods and standards of practice exercised by practitioners of the defendant's school, particularly in regard to principles of diagnosis or the existence of a condition that should be recognized by any physician or that are common to the defendant's and the witness's schools.

Dr. Borcicky cites several cases from other jurisdictions to support his argument against admitting the testimony. For instance, in Botehlo v. Bycura, 282 S.C. 578, 320 S.E.2d 59 (App.1984), a case similar to the present case, a podiatrist was sued for malpractice. The Court of Appeals of South Carolina held that a podiatrist's duty of care must be measured by the practices and principles of the particular healing arts in which he or she is trained and licensed. Id. The trial judge in that case had concluded that an orthopedic surgeon offered as an expert witness could not testify as to the standard of good podiatric practice because he did not have any training or instruction in podiatry, was unfamiliar with the journals, periodicals, and books written by podiatrists, and admitted that he had never attended any seminars on podiatry and was not familiar with the standards of professional care generally observed by podiatrists.

Whitehurst v. Boehm, 41 N.C.App. 670, 255 S.E.2d 761 (1979), also held that the standard of care required of a podiatrist could not be established by the testimony of an orthopedic surgeon not familiar with the practice of podiatry. The court stated that a podiatrist must exercise that degree of ordinary skill and care that is commonly exercised by other podiatrists in the same locality under similar circumstances. Id. A podiatrist is not bound to possess and exercise the degree of skill and learning required of an ordinary physician or surgeon. Id. The court held that, because the educational requirements for a podiatrist are less demanding than those of a physician or a surgeon, proof of negligence may be offered only by practitioners of the defendant's own school of medicine. Id.

In contrast to the above cases, the Court of Appeals of Georgia allowed testimony by an orthopedic surgeon regarding the standard of care owed by a licensed podiatrist in Sanford v. Howard, 161 Ga.App. 495, 288 S.E.2d 739 (1982). The court based its decision on the fact that the orthopedic surgeon had stated that he was familiar with the procedure that the defendant had used to treat the plaintiff. The court held that while the membership in a different school of medicine may affect the weight given the testimony, it does not affect its admissibility. Id. See, also, Durkee v. Oliver, 714 P.2d 1330 (Colo.App.1986) (failure to qualify podiatric surgeon was an abuse of discretion); Marshall v. Yale Podiatry Group, 5 Conn.App. 5, 496 A.2d 529 (1985) (orthopedic surgeon qualified to testify as to podiatrist's standard of care because of familiarity with common standard of both professions); Alexander v. Mt. Carmel Medical Center, 56 Ohio St.2d 155, 383 N.E.2d 564 (1978) (in malpractice action against orthopedic surgeons it was error to exclude podiatrist's testimony because the fields of medicine overlap); Creasey v. Hogan, 48 Or.App. 683, 617 P.2d 1377 (1980) (no error in admitting testimony of orthopedic surgeon in malpractice action against podiatrist, because both used similar surgical methods).

While those cases are persuasive, they can be distinguished from the facts presented here. In this case, Dr. Zarzour freely admits that he has no knowledge of podiatry. Dr. Borcicky cites Dr. Zarzour's deposition testimony as showing a total lack of training in podiatry:

"Q. Have you ever been to podiatry school?

"A. No, sir.

"Q. Have you ever attended any seminars or professional...