Mock v. Allen

Decision Date17 November 2000
Citation783 So.2d 828
PartiesShellie MOCK, Jr. v. Dr. Robert ALLEN.
CourtAlabama Supreme Court

Steven F. Schmitt and John G. Smith of Schmitt, Harper & Smith, P.C., Tallassee (rehearing brief filed by John G. Smith of Harper & Smith, P.C., Tallassee), for appellant.

Norman E. Waldrop, Jr., and Broox G. Holmes, Jr., of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, L.L.C., Mobile, for appellee.

On Application for Rehearing

BROWN, Justice.

The opinion of June 30, 2000, is withdrawn and the following opinion is substituted therefor.

Shellie Mock, Jr., appeals from a judgment entered on a jury verdict in favor of the defendant Dr. Robert Allen. We affirm.

The evidence presented at trial established that in September 1991, Mock was involved in an automobile accident while he was in Austin, Texas. As a result of the accident, he suffered injuries to his head, neck, back, left hip/groin area, and left knee. Mock was treated in the emergency room of a hospital in Austin. Because Mock complained of pain in his neck, back, and left hip and groin area, the treating physician x-rayed Mock's left hip and his spine; the results showed no injury. Mock was subsequently released. Mock returned home to Alabama, where he sought treatment from Dr. Andy Kirk for pain and bruising. While he was a patient of Dr. Kirk's, Mock also sought treatment from Scott Hannen, a local chiropractor. However, Mock continued to experience pain in his neck, back, left hip, and left leg. Hannen suggested that Mock see Dr. Robert Allen, a local neurologist.

Mock first saw Dr. Allen on November 19, 1991. During Mock's initial appointment, he advised Dr. Allen of his complaints. Dr. Allen performed a thorough physical examination, paying particular attention to the areas where Mock had complained of experiencing pain—the neck, back, left hip/groin area, and left leg. According to Mock, Dr. Allen fondled his genitals during this examination. Dr. Allen denied doing so. Following his examination, Dr. Allen's initial diagnosis was that Mock was suffering from cervical and lumbar strain. Dr. Allen wanted to rule out radiculopathy, a disease that would cause pain to radiate through the nerves extending from Mock's spine, through his pelvic region, and into his injured left leg. Dr. Allen determined that several tests needed to be performed before he could make an accurate diagnosis, including an electromyographic test (an "EMG") and a magnetic-resonance-imaging test (an "MRI"). These tests were performed at Southeast Alabama Medical Center on November 21 and 25, 1991.

Mock returned to Dr. Allen's office for a follow-up visit on November 25, 1991. After reviewing Mock's EMG and MRI results, Dr. Allen diagnosed Mock as suffering from cervical and lumbar strain. He prescribed a course of treatment that included cervical traction and the prescription medication Limbitrol, a muscle relaxant. Mock claimed that Dr. Allen again fondled him during a physical examination on that follow-up visit. Although Dr. Allen did not recall conducting a physical examination on Mock on that occasion, he said that he may have done so. Dr. Allen, however, denied fondling Mock. At the conclusion of the visit, Dr. Allen instructed Mock to return for another follow-up visit in two weeks.

One week later, on December 3, 1991, Mock called Dr. Allen's office, complaining of severe pain. He asked for an immediate appointment. Later that day, Dr. Allen examined Mock. Upon examining Mock's neck, back, and left groin area, Dr. Allen determined that the traction had failed to improve his condition. Dr. Allen gave Mock two injections—one of celestone soluspan, and one of phenobarbital— and instructed him to remain in the examining room for approximately 15 minutes. According to Dr. Allen, this was standard procedure, to ensure that Mock did not have an adverse reaction to the medications. According to Mock, the injections knocked him out and when he awoke Dr. Allen was sitting between his legs "messing with" his genitals. Mock stated that he asked Dr. Allen what he was doing and that Dr. Allen said he was checking for a hernia.

Dr. Allen denied touching Mock; he stated that he went in the examining room to see if Mock had had any adverse reaction to the medications, and that when he discovered that he had not, he told him that he could get dressed and leave. Mock dressed and left the office. However, he telephoned Dr. Allen's office the following day, again complaining of severe pain. Dr. Allen spoke with Mock; he gave him the option of returning to his office for another course of injections, or going to the hospital. Mock chose hospitalization, and Dr. Allen's office arranged for him to be admitted to Southeast Alabama Medical Center.

Mock was hospitalized from December 4 to December 10, 1991. As required by hospital policy, Dr. Allen performed an initial examination of Mock. Dr. Allen did not recall whether he touched Mock's genitals during that examination, but he stated that it was possible that he did. Dr. Allen ordered intravenous pain medication and muscle relaxants for Mock; he also prescribed intensive physical therapy. Dr. Allen made daily follow-up visits to Mock, to determine how he was responding to the treatment. Mock claimed that during each visit, Dr. Allen fondled him. Mock stated that following one of Dr. Allen's visits, his aunt—a nurse at the hospital—came by to visit and he broke down and told her what had happened.

After several days, Mock's condition began to improve, and Dr. Allen switched Mock from intravenous to oral medications. Dr. Allen testified that on December 9 he determined that Mock's condition had improved sufficiently so that he could be released from the hospital the following day. Mock maintained that his December 10 release was triggered by a confrontation he had had with Dr. Allen, in which he told Dr. Allen that Dr. Allen could not touch his genital area anymore. Shortly after this confrontation, Mock says, he was told that he was being discharged from the hospital.

Upon his discharge from the hospital, Mock was given prescriptions for Voltaren and Elavil, and an appointment card showing a December 19, 1991, office visit with Dr. Allen. On December 12 Mock telephoned Dr. Allen and told him that he was still in pain and that he wanted additional medication. Dr. Allen refused to give Mock any more medication. It appears that, at this point, the doctor-patient relationship between Mock and Dr. Allen ended, and each party claims to be the one who ended the relationship. Mock stated that not long after his discharge, he contacted the hospital and complained about Dr. Allen's alleged improper conduct.

Dr. Allen denied that he had touched Mock improperly. Moreover, three nurses who cared for Mock during his hospital stay testified that Mock did not complain of improper conduct by Dr. Allen and that he did not exhibit any signs of emotional distress. Mock made no allegations against Dr. Allen to Dr. William Reynolds, the internist he saw on December 12, 1991, or to Dr. William Hanson, the orthopedic surgeon who treated him beginning in April 1992. Dr. Hanson testified that Mock first consulted him in April 1992 complaining of pain in his chest and on his left side. Dr. Hanson also testified that Mock told him that he was suffering pain in his left pelvic area. Dr. Hanson's notes described the pain as being in the iliac crest, where the sartorius muscle originates. Dr. Hanson testified that the sartorius muscle runs from the pelvic/groin area to the inner knee, and that an examination of the muscle required that it be palpated.

The only physician to whom Mock related his complaints against Dr. Allen was Dr. Alan Prince, another local neurologist from whom Mock sought treatment. Dr. Prince testified that an examination of Mock based on his complaints would not have required touching his genitals.

At trial, Mock objected to the trial court's ruling that his action against Dr. Allen was governed by the Alabama Medical Liability Act, § 6-5-540 et seq., Ala. Code 1975 (the "AMLA"). As part of his case, Mock unsuccessfully attempted to offer evidence of other alleged wrongful acts by Dr. Allen, namely, that Dr. Allen had had improper contact with five other male patients, each of whom was prepared to testify that Dr. Allen had touched them inappropriately during an examination. The trial court also prohibited Mock's attempt to offer evidence of Dr. Allen's alleged sexual preference. Mock's case against Dr. Allen was submitted to a jury, which returned a verdict in favor of Dr. Allen.

I.

Mock first argues that the trial court erred in ruling that his claims against Dr. Allen were governed by the AMLA.

The AMLA applies "[i]n 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." § 6-5-548(a), Ala.Code 1975. A "health-care provider" includes a "medical practitioner," that is, a medical doctor or osteopath licensed to practice in Alabama. §§ 6-5-542(1) and 6-5-481(1), Ala.Code 1975. Although the AMLA applies only to medical-malpractice actions, a plaintiff cannot avoid application of the AMLA by "creative pleading." This Court has consistently held that it is the substance of the action, rather than the form, that is the touchstone for determining whether an action is actually one alleging medical malpractice. Allred v. Shirley, 598 So.2d 1347 (Ala.1992); Benefield v. F. Hood Craddock Clinic, 456 So.2d 52 (Ala. 1984); Sellers v. Edwards, 289 Ala. 2, 265 So.2d 438 (1972).

Over the years, this Court has been called upon to determine whether a number of cases filed against physicians and other health-care providers were, in fact, governed by the AMLA. We have held generally that "[c]laims alleging misrepresentations made during the course of a doctor-patient relationship are claims of malpractice and are governed by the AMLA." Ex...

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