Ex parte HealthSouth Corp.

• Decision Date: 27 November 2002
• Citation: 851 So.2d 33
• Parties: Ex parte HealthSOUTH CORPORATION d/b/a HealthSouth Lakeshore Rehabilitation Hospital. (In re Sharon Heath and Thurman Heath v. HealthSouth Medical Center).
• Court: Alabama Supreme Court

851 So.2d 33

Ex parte HealthSOUTH CORPORATION d/b/a HealthSouth Lakeshore Rehabilitation Hospital.

(In re Sharon Heath and Thurman Heath v. HealthSouth Medical Center).

1011582.

Supreme Court of Alabama.

November 27, 2002.

Joe L. Leak and Robert G. Boliek, Jr., of Friedman, Leak & Bloom, P.C., Birmingham, for petitioner.

D. Leigh Love, Betty C. Love, and William C. Sullivan of Love, Love & Love, P.C., Talladega, for respondents.

LYONS, Justice.

The defendant, HealthSouth Corporation d/b/a HealthSouth Lakeshore Rehabilitation Hospital ("HealthSouth"), petitioned this Court for a writ of certiorari to review whether the Court of Civil Appeals erred in reversing the summary judgment in favor of HealthSouth and against the plaintiffs Sharon Heath and Thurman Heath. See Heath v. HealthSouth Med. Ctr., 851 So.2d 24 (Ala.Civ.App.2002). We granted certiorari review. For the reasons discussed below, we affirm the judgment of the Court of Civil Appeals.

Facts and Procedural History

We adopt the statement of facts as set forth in the Court of Civil Appeals' opinion in Heath:

"[Sharon] Heath had been admitted to the HealthSouth facility for back surgery. After her surgery, which was successfully performed, Heath was transferred to the rehabilitation section of the facility. Immediately before her transfer and before she left the surgical ward on November 21, 1999, she was given 5 milligrams (`mg.') Valium, 10 mg. morphine, and a Percodan tablet. Shortly after arriving at the rehabilitative floor of the facility, she received a second Percodan tablet. The Percodan was supposed to be given at four-hour intervals, but Heath received the second Percodan tablet 2 hours and 45 minutes after she had taken the first one. In addition, Heath did not receive a scheduled dose of her insulin. [Heath is an insulin-dependent diabetic.] Heath's assigned nurse at the rehabilitative unit, Kathy Reid, an L.P.N. and a new employee working her first day on the rehabilitation unit, raised two side rails (one rail on each side of the bed) of the four side rails on Heath's bed and left her with a buzzer near her hand.

"Heath testified in her deposition that, shortly after she received the second Percodan tablet, she needed to use the bathroom, and she rang the buzzer to summon a nurse. Heath said that after she rang the buzzer, she waited `anywhere from 30 minutes to an hour' for a nurse to come and assist her to the bathroom. The evidence as to whether the nurses were aware of the activation of Heath's buzzer or whether the buzzer was actually working is disputed. Heath testified that, although she knew that her doctor had instructed her not to get up from her bed without the assistance of a nurse, she was unable to wait any longer and she began to climb out of bed by herself. Heath said that when she put weight on her left foot, it gave way and she fell, breaking her left hip. She immediately underwent surgical open reduction and internal fixation of the left intertrochanteric fracture.

"On March 20, 2000, the Heaths sued HealthSouth, and various fictitious defendants, alleging that the defendants had breached the standard of care in providing care and treatment for Heath while she was a patient in the facility. Specifically, they alleged that the defendants (1) had failed to identify Heath as a patient `at risk' for falling, (2) had failed to properly supervise and monitor Heath while she was being treated in the facility, (3) had failed to train its nursing staff on safety issues, and (4) had failed to respond to Heath's calls for assistance.

"On February 20, 2001, HealthSouth moved for a summary judgment, stating as grounds that no genuine issue of material fact existed as to the defendants' breach of the standard of care. Health-South supported its motion with the affidavit of Lola Patterson, R.N. On March 1, 2001, the Heaths responded to HealthSouth's summary-judgment motion with the affidavit testimony of Julie Akin, R.N. On March 2, 2001, Health-South submitted a supplemental affidavit of Ms. Patterson that was substantially the same as the initial affidavit, along with a certified copy of Heath's medical records from her November 1999 hospital stay at HealthSouth. Shortly thereafter, HealthSouth moved to strike Ms. Akin's affidavit, contending that she was not a qualified expert pursuant to the Alabama Medical Liability Act, § 6-5-548, Ala.Code 1975, which requires that the health-care expert have practiced in the same discipline as the health-care-provider defendant `during the year preceding the date that the alleged breach of standard of care occurred.' § 6-5-548(b)(3). The trial court determined that Ms. Akin did not meet those requirements, struck her affidavit, and granted HealthSouth's summary-judgment motion.

"The Heaths filed a postjudgment motion, which the trial court denied.... On appeal, the Heaths argue[d] that the trial court erred by striking the testimony of their expert, Julie Akin, R.N., on the grounds that it did not comply with § 6-5-548. They also argue[d] that expert testimony was not necessary in this case to establish the applicable standard of care and the breach of that standard."

Heath, 851 So.2d at 26-27 (footnotes omitted). The main opinion of the Court of Civil Appeals held that § 6-5-548, Ala. Code 1975, a part of the Alabama Medical Liability Act ("AMLA"), requires expert testimony to prove how HealthSouth breached its duty to Heath, who alleges she was a patient "at risk" for falling, and how this breach caused Heath's injury. However, that opinion also held that expert testimony was not needed to prove that HealthSouth breached its duty of care to Heath when its nursing staff allegedly failed to respond to her calls for assistance, which failure proximately caused Heath's injuries. The Court of Civil Appeals reversed the summary judgment.

Standard of Review

The principles of law applicable to the review of a motion for a summary judgment are well settled. The party moving for a summary judgment must make a showing that the evidence does not raise a genuine issue of material fact and that the movant is entitled to the judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant has made a prima facie showing that those two conditions are satisfied, the burden then shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is "substantial" if it is of "such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

In reviewing a summary judgment, we apply the same standard the trial court applied. Ex parte Lumpkin, 702 So.2d 462, 465 (Ala.1997). Our review is subject to the caveat that we must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).

Analysis

HealthSouth argues that the main opinion of the Court of Civil Appeals incorrectly held that "no expert testimony was required to establish that HealthSouth breached its duty of care with respect to Heath's allegation that HealthSouth's nursing staff failed to respond to her calls for assistance in walking to the bathroom and that, as a proximate consequence of that failure, Heath attempted to walk to the bathroom by herself, fell, and was injured." Heath, 851 So.2d at 30. The court relied upon a Vermont case, Newhall v. Central Vermont Hosp., Inc., 133 Vt. 572, 349 A.2d 890 (1975), in reaching that conclusion. In Newhall, the Supreme Court of Vermont held that a patient is not required to present expert testimony as to the unreasonableness of delay in answering a call light, because the alleged lack of care related to matters that were reasonably within the knowledge and experience of the average layperson. Id. However, HealthSouth argues that Newhall is inapplicable because Vermont does not have a statute comparable to § 6-5-548.

HealthSouth also contends that the Court of Civil Appeals' holding is in conflict with Anderson v. Alabama Reference Laboratories, 778 So.2d 806 (Ala.2000), and the cases upon which Anderson relies. In Anderson, this Court stated:

"As a general rule, in a medical-malpractice action, the plaintiff is required to produce expert medical testimony to establish the applicable standard of care and a breach of that standard of care, in order to satisfy the plaintiff's burden of proof. See Allred v. Shirley, 598 So.2d 1347, 1350 (Ala.1992) (citing Tuscaloosa Orthopedic Appliance Co. v. Wyatt, 460 So.2d 156, 161 (Ala.1984)). However, `[a]n exception to this rule exists "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."` Wyatt, 460 So.2d at 161 (quoting Dimoff v. Maitre, 432 So.2d 1225, 1226-27 (Ala.1983)). This Court has recognized the following situations as falling within this exception:

"`"1) where a foreign instrumentality is found in the plaintiff's body following surgery; 2) where the injury complained of is in no way connected to the condition for which the plaintiff sought treatment; 3) where the plaintiff employs a recognized standard or authoritative medical text or treatise to prove what is or is not proper practice; and 4) where the plaintiff is himself or herself a medical expert qualified to evaluate the doctor's allegedly negligent conduct."'

"Allred, 598 So.2d at 1350 (quoting Holt v. Godsil, 447 So.2d 191, 192-93 (Ala. 1984) (citations omitted in Allred))."

778 So.2d at 811. HealthSouth argues that because the Heaths did not present expert testimony and because their claim does not fall within any of the four circumstances enumerated in Anderso...