Husby v. South Alabama Nursing Home, Inc.

• Decision Date: 10 April 1998
• Citation: 712 So.2d 750
• Parties: Albert F. HUSBY, as administrator of the estate of Flora Husby v. SOUTH ALABAMA NURSING HOME, INC., d/b/a Bay Manor Health Care Center; et al. 1970097.
• Court: Alabama Supreme Court

Page 750

712 So.2d 750

Albert F. HUSBY, as administrator of the estate of Flora Husby v. SOUTH ALABAMA NURSING HOME, INC., d/b/a Bay Manor Health Care Center; et al.

1970097.

Supreme Court of Alabama.

April 10, 1998.

M. Jack Hollingsworth and Lucian B. Hodges of Hollingsworth & Associates, Birmingham, for appellant.

Davis Carr, W. Benjamin Broadwater, and Kathleen Cobb Kaufman of Carr, Alford, Clausen & McDonald, L.L.C., Mobile, for appellees.

HOOPER, Chief Justice.

This case involves an interpretation of the Alabama Medical Liability Act, specifically Ala. Code 1975, § 6-5-548. That section prescribes the burden of proof applicable in a case brought under the Act. The issue is whether the plaintiff presented competent expert testimony in opposition to the defendants' properly supported motion for summary judgment. The trial court entered a summary judgment for the defendants. We affirm.

The plaintiff sued as administrator of the estate of Flora Husby. In May 1995, Flora Husby was a resident of Bay Manor Nursing Home, operated by South Alabama Nursing Home, Inc. (hereinafter referred to as "Bay Manor"). On May 21, 1995, she sustained a right-hip fracture. Knollwood Park Hospital performed surgery to repair her hip, and she was readmitted to Bay Manor upon completion of the surgery. From May 26, 1995, to May 30, 1995, the nurses at Bay Manor found Husby on the floor on four different occasions. Husby was supposed to be restrained to her bed. Each time they found her, the nurses attempted to prevent another fall by applying "roll belts" for restraint and a "Posey vest" to secure her to the bed. The nurses found no injuries after the first three falls. However, an X-ray indicated that the fourth fall caused a fracture of Husby's right femur. The nursing home transferred Husby to Knollwood Park Hospital for surgery. Husby died approximately six weeks after the femoral surgery. She was under the care of Knollwood Park Long-Term Care Hospital at the time of her death.

Albert Husby filed a medical malpractice action against several parties. The only defendants pertinent to this appeal are Bay Manor and two employees of the nursing home, Wilson R. Hatfield and Posey Cook. Hatfield is the administrator at Bay Manor and Cook is its director of nursing. All of the other defendants have been dismissed. The plaintiff alleges that the defendants failed to provide Husby with the requisite standard of care, by not properly monitoring her. He argues that Husby would not have fallen if she had been properly supervised by the nurses.

To prove a breach of the standard of care, the plaintiff offered as expert testimony the testimony of Byron S. Arbeit, a nursing home administrator, and Dr. Frederick Ernst, an anesthesiologist. After deposing those experts, Bay Manor moved for a summary judgment, arguing that the plaintiff's experts were not qualified to testify about the standard of care allegedly breached. Bay Manor argued that these experts were not qualified to testify as to the standard of care applicable to securing a patient to the bed to prevent a fall. Bay Manor claimed that the plaintiff's evidence would not meet the burden of proof imposed by the Alabama Medical Liability Act.

On May 5, 1997, the trial court heard oral argument on the motion for summary judgment. It deferred a ruling on the motion in order to allow the plaintiff to submit further information establishing his experts as "similarly situated health care providers," as required by the Alabama Medical Liability Act. Following the hearing, the plaintiff moved for leave to amend his complaint so as to add Hatfield and Cook as defendants. The trial court granted the motion, and the plaintiff added those individual defendants on May 16, 1997. Bay Manor, Hatfield, and Cook, objecting to the qualifications of the plaintiff's experts, moved for a summary judgment on June 3, 1997. On July 11, 1997, the trial court granted the defendants' motion for summary judgment. The plaintiff appeals.

The trial court based the summary judgment on its conclusion that the plaintiff, in his attempt to present substantial evidence indicating that the defendants had breached the applicable standard of care, had not complied with the statutory requirements. Section 6-5-548(a) (1997 Cum.Supp.) states:

"In any action for injury or damages or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care, the plaintiff shall have the burden of proving by substantial evidence that the health care provider failed to exercise such reasonable care, skill, and diligence as other similarly situated health care providers in the same general line of practice ordinarily have and exercise in a like case."

The trial judge determined that "[n]o competent expert testimony of similarly situated health care providers was provided by the plaintiff as required by statutory and case law." The trial judge concluded that the experts used by the plaintiff were not "similarly situated health care providers" as that term is used in § 6-5-548. He based this decision on the fact that neither of the plaintiff's experts was a nurse qualified to give testimony regarding the standard of care of "hands on" health care providers in a long-term care facility. He also determined that a summary judgment was proper for Hatfield and Cook because they rendered no "hands on" care to Husby and any liability on their part would be derivative of those who did render such care. We agree with the trial judge.

"In reviewing the disposition of a motion for summary judgment, we utilize the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue of material fact." Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988). When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (Ala.1989). "[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). This Court 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 (Ala.1990).

"In this case, Rule 56 must be read in conjunction with the 'substantial evidence' rule set out at § 6-5-548(a) and the following definition of 'substantial evidence' appearing at § 6-5-542(5) of the Alabama Medical Liability Act:

" '(5) SUBSTANTIAL EVIDENCE. Substantial evidence is that character of admissible evidence which would convince an unprejudiced thinking mind of the truth of the fact to which the evidence is directed.' "

Leonard v. Providence Hospital, 590 So.2d 906, 907 (Ala.1991).

First, we note that, for purposes of the Alabama Medical Liability Act, a nursing home is considered a hospital and, therefore, that Bay Manor is covered by the provisions of that Act. Ex parte Northport Health Service, Inc., 682 So.2d 52, 55 (Ala.1996). The defendants cite Barton v. American Red Cross, 829 F.Supp. 1290 (M.D.Ala.1993), aff'd, 43 F.3d 678 (11th Cir.1994), for the proposition that the focus should be on the individual practitioner whose specific action is alleged to have fallen below the standard of care. We accept that proposition, and we conclude that the focus in this case should be on the standard of care owed by the nurses who rendered direct care to Husby. Also, when a defendant is not an individual, it is logical to limit the admissible expert testimony to that coming from witnesses who are, as to the specific individual whose actions formed the basis...