Ellingwood v. Stevens

• Decision Date: 29 June 1990
• Citation: 564 So.2d 932
• Parties: Dr. Kenneth E. ELLINGWOOD v. Charles Richard STEVENS. 88-1085.
• Court: Alabama Supreme Court

Page 932

564 So.2d 932

Dr. Kenneth E. ELLINGWOOD v. Charles Richard STEVENS.

88-1085.

Supreme Court of Alabama.

June 29, 1990.

Wesley Pipes, Walter M. Cook, Jr. and William E. Shreve, Jr. of Lyons, Pipes & Cook, Mobile, for appellant.

Andrew T. Citrin of Cunningham, Bounds, Yance, Crowder, and Brown, Mobile, for appellee.

ALMON, Justice.

This is an appeal from a judgment rendered on a jury verdict awarding Charles R. Stevens $700,000 in his medical malpractice action against Dr. Kenneth E. Ellingwood, M.D.

In 1985 Stevens was scheduled for abdominal surgery. During preparations for that surgery, his doctor discovered a cancerous tumor at the base of his tongue. The tumor was surgically removed and Stevens was advised to undergo radiation therapy to prevent any spread or recurrence of the cancer. Stevens was referred to the appellant, Dr. Kenneth E. Ellingwood, M.D., a radiation oncologist, for treatment. Dr. Ellingwood planned a course of radiation therapy that would last approximately six and one-half weeks. Under the plan, Stevens was to receive a total dosage of approximately 6600 rads of radiation, delivered to portions of his head and neck in increments of approximately 200 rads per day. ¹

He was to receive certain treatments by which he would be exposed to 4600 rads with his spinal cord unshielded. Those treatments, where Stevens's spinal cord was purposely in the field of radiation, were called "on cord" treatments. For the final portion he was to receive a total of 2000 rads, during which his spinal cord was to be shielded by a number of specially prepared blocks that were designed to prevent any radiation from reaching it. Those treatments were referred to as "off cord" treatments. That plan was implemented, and Stevens completed the course of radiation therapy under Dr. Ellingwood's care.

Approximately nine months after Stevens received his last treatment, he began to have problems with walking and coordination. His condition continued to deteriorate until he lost the use of both of his legs and his right arm. He retained partial use of his left arm.

Stevens filed a complaint against Dr. Ellingwood and another radiation oncologist who had been involved in his treatment. ² His complaint alleged, inter alia, that Dr. Ellingwood had been negligent in administering the radiation treatments, allowing Stevens's spinal cord to be exposed to excessive radiation during the treatment sessions that were supposed to be "off cord." Stevens alleged that Dr. Ellingwood's negligence caused his quadriparesis.

Several expert witnesses testified at trial, including Dr. John T. Mallams, a radiation oncologist. Dr. Mallams's competency to testify as an expert on the medical issues was not challenged by Dr. Ellingwood. He testified that he was very familiar with the type of treatment that Dr. Ellingwood had administered to Stevens and with the standard of care that was required of radiation oncologists that performed that type of treatment. He testified that, in his professional opinion, the evidence that he had reviewed revealed that the blocks that were prepared to shield Stevens's spinal cord had not been properly positioned during his treatment. That evidence, which included a number of specially prepared X-rays that were taken during Stevens's treatment, revealed that his spinal cord had been in the field of radiation during the planned "off cord" treatments. Dr. Mallams further testified that the excessive exposure of Stevens's spinal cord was the result of a number of errors of omission and errors of commission in the placement of the blocks and in Dr. Ellingwood's apparent failure to verify that the blocks were in place and performing properly. He stated that those errors caused Stevens's spinal cord to receive in excess of 6000 rads of radiation, instead of the planned 4600 rads. He said that this excessive exposure was almost certainly the cause of the neurological deficit experienced by Stevens. Finally, Dr. Mallams stated that the treatment rendered to Stevens by Dr. Ellingwood fell below the standard of care required of physicians in his field "any place in the United States."

Additional testimony was received from Dr. Kenneth Steidley, a medical physicist. Dr. Steidley is not a physician. Portions of Dr. Steidley's testimony were objected to by Dr. Ellingwood. Dr. Steidley testified that he had an undergraduate degree in physics from Ohio University, and had received both a master's degree in radiation science and a doctorate in environmental science with a specialty in radiation science from Rutgers University. He stated that he was certified by the American Board of Health Physics and the American Board of Radiology and had held the position of chief physicist at the St. Barnabas Medical Center in Livingston, New Jersey, since 1975. His duties at St. Barnabas included supervising other physicists in the department of radiation therapy who are responsible for ensuring that the radiation therapy plans prescribed by radiation oncologists are delivered correctly. Dr. Steidley testified that, in his opinion, 4000 rads is recognized as the maximum dose that the spinal cord should receive during radiation therapy. He also testified that his review of the X-rays taken during Stevens's treatment revealed that Stevens's spinal cord was in the field of radiation during treatment sessions that were supposed to have been "off cord."

Dr. Ellingwood contends that those answers constituted testimony as to the standard of care owed by radiation oncologists. This Court has held that testimony defining the standard of care owed by a physician, or a breach thereof, must be provided by an expert medical witness, unless the breach is so apparent as to be within the comprehension of the average layman. Timmerman v. Fitts, 514 So.2d 907 (Ala.1987); Dobbs v. Smith, 514 So.2d 871 (Ala.1987). Standard of care testimony is testimony concerning the degree of competency required of a professional, and it usually addresses whether the defendant in a particular case breached that standard. See S. Pegalis and H. Wachsman, American Law of Medical Malpractice § 11.4 (1981). Dr. Steidley's testimony concerned objective, scientific facts that were within his area of expertise and did not address the standard of care owed by a physician or other professional.

Dr. Ellingwood argues that the case of Bell v. Hart, 516 So.2d 562 (Ala.1987), requires a reversal of the judgment against him. In Bell this Court upheld a summary judgment for the defendant doctor, holding that the trial court did not abuse its discretion in excluding the testimony of a psychologist and a pharmacist because they were not competent to testify as experts on the standard of care required of physicians in prescribing the drug Elavil.

In Bell, this Court concluded:

"We are of the opinion that unless the conduct complained of is readily ascertainable by lay persons, the standard of care must be established by medical testimony. 'Medical testimony' means testimony by physicians or properly introduced medical treatises that are recognized as authoritative and standard works in the medical profession.

"Although both Fisher [a pharmacist] and Miller [a psychologist] are shown to be highly qualified experts in their fields of study, we cannot permit them to testify whether a medical doctor followed the proper standard of care in prescribing the drug Elavil. Neither was shown to be authorized to prescribe the drug. While their knowledge of the drug and its effect on the human body may or may not be greater than that of a medical doctor authorized by law to prescribe the drug, we cannot permit a nonphysician, who cannot legally prescribe a drug, to testify concerning the standard of care that should be exercised in the prescription of the drug.

"Finding no applicable exceptions to the general rule that proof as to what is or is not proper practice, treatment, and procedure can be established only by expert medical evidence, we conclude, as did the trial court, that summary judgment was appropriate. We would point out that appellants made no attempt to introduce any evidence from another medical doctor regarding this case, and the defendant raised at every opportunity this failure of proof."

516 So.2d at 570. Unlike the evidence in Bell, the standard-of-care evidence in this case was given by a qualified physician. Dr. Mallams, a radiation oncologist, is a medical doctor and is qualified in the same specialty as defendant Dr. Ellingwood.

Furthermore, unlike the excluded testimony in Bell, the evidence sought by the questions put to Dr. Steidley involved matters of science,...