Heath v. HealthSouth Medical Center

• Decision Date: 03 May 2002
• Parties: Sharon HEATH and Thurman Heath v. HealthSOUTH MEDICAL CENTER.
• Court: Alabama Court of Civil Appeals

851 So.2d 24

Sharon HEATH and Thurman Heath v. HealthSOUTH MEDICAL CENTER.

2000807.

Court of Civil Appeals of Alabama.

May 3, 2002.

D. Leigh Love of Love, Love & Love, P.C., Talladega, for appellants.

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

CRAWLEY, Judge.

Sharon Heath and Thurman Heath,¹ husband and wife, appeal from a summary judgment entered against them on their claims against HealthSouth Medical Center stemming from a fall Mrs. Heath suffered while she was being treated as a patient in that facility. We reverse and remand.

Heath had been admitted to the Health-South 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.² 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.³ 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 rails⁴ (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. HealthSouth 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, HealthSouth 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 § 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 Health-South's summary-judgment motion.

The Heaths filed a postjudgment motion, which the trial court denied. Thereafter, the Heaths appealed to the Supreme Court; that court transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975. On appeal, the Heaths argue 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 that expert testimony was not necessary in this case to establish the applicable standard of care and the breach of that standard.

We review a summary judgment de novo; we apply the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing "that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992)

. The court must view the evidence in a light most favorable to the nonmoving party and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990). If the movant meets this burden, "the burden then shifts to the nonmovant to rebut the movant's prima facie showing by `substantial evidence.'" Lee, 592 So.2d at 1038 (footnote omitted). "[S]ubstantial evidence is evidence 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); see Ala.Code 1975, § 12-21-12(d). See Ex parte General Motors Corp., 769 So.2d 903 (Ala.1999), and Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (Ala. 1989), for further discussion of the application of the summary-judgment standard.

HealthSouth supported its motion for a summary judgment with the affidavit of a registered nurse, Lola Patterson, who had worked for 20 years in patient care, and then in 1987 became an educator in nursing-staff development at the University of Alabama in Birmingham. Ms. Patterson opined in her affidavit that neither Health-South nor its employees had breached a standard of care in treating Heath. She further stated that it was her opinion that Heath had put herself at risk by getting out of bed unassisted when her doctors had advised her against doing so. In response to the defendants' summary-judgment motion, the Heaths filed a responsive motion supported with the affidavit, as well as the deposition testimony of Julie Akin, a registered nurse who is presently employed as a workers' compensation consultant. On March 5, 2001, HealthSouth moved to strike the affidavit and deposition testimony of Julie Akin, R.N., stating as grounds that Akin was not a "similarly situated health care provider" who had "practiced in the same discipline or school of practice during the year preceding the date that the alleged breach of the standard of care occurred." § 6-5-548, Ala. Code 1975.

The trial court entered a summary judgment for HealthSouth. In its judgment the trial court stated, in pertinent part:

"In response to the Defendant's motion, the Plaintiffs offer in rebuttal the testimony of their expert, Julie Akin, R.N. While Ms. Akin may, in fact, counter the Defendant's proposition, the Defendant moves to strike her testimony under the contention that Julie Akin is not a qualified expert under the provisions of § 6-5-548, Ala.Code 1975. Section 6-5-548, in pertinent part, requires that the expert have practiced in the same discipline as the health care provider `during the year preceding the date that the alleged breach of standard of care occurred.' It is undisputed that the alleged breach occurred on November 21, 1999; therefore [pursuant to the terms of the statute Ms. Akin is required to have been engaged in nursing practice] between November 21, 1998, and November 21, 1999. In Ms. Akin's resumé attached to her affidavit it appears that she worked as a workers' compensation Case Manager from April 1998, to July 2000. Moreover, in her deposition she describes her duties as follows:

"`Q: Now, during the time you worked for Directions [Management Company] and Genex, I think you indicated that those were full-time employments there?

"`A: Correct.

"`Q: Did you do any flex-time or part-time nursing while you were working there?

"`A: No.

"`Q: How would you describe—I mean, I have some familiarity with work as a work. comp. case manager, but tell us in your own words what—how you would describe that job when people ask you?

"`A: Basically what my job entails is I deal with the injured employee, and I usually follow them throughout their course of treatment. I work with the employee, the employer, the physician, physical therapy if there is any ordered. And basically my responsibility is to ensure that all the patient's needs are met in a timely manner and if they have any questions, they are addressed.

"And I'm kind of like a middle person, I report back to the insurance company, my company, which would have been Directions or Genex and I also contact the employee's attorney if they have one. So, I'm pretty much responsible to a lot of different people. But my goal is to get the patient back to work in a timely manner and in a safe manner.

"`Q: Would it be true that you weren't providing any actual nursing services to the employees in your capacity as a work comp case manager?

"`A: [What do] you mean by nursing services?

"`Q: I mean hands-on treatment such as what you're doing now a[t] [Druid City Hospital] or what you've

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