Panayiotou v. Johnson

• Decision Date: 30 May 2008
• Docket Number: 1061829.
• Citation: 995 So.2d 871
• Parties: Hercules PANAYIOTOU, M.D. v. Jamie Sullivan JOHNSON, as administratrix of the estate of Mae Sullivan, deceased.
• Court: Alabama Supreme Court

995 So.2d 871

Hercules PANAYIOTOU, M.D. v. Jamie Sullivan JOHNSON, as administratrix of the estate of Mae Sullivan, deceased.

1061829.

Supreme Court of Alabama.

May 30, 2008.

A. Danner Frazer, Jr., W. Austin Mulherin III, and Mary Margaret Bailey of Frazer, Greene, Upchurch & Baker, L.L.C., Mobile, for appellant.

Russell E. Bergerstrom, Mobile; and R. Ray Orrill, Jr., of Orrill, Cordell & Beary, L.L.C., New Orleans, Louisiana, for appellee.

STUART, Justice.

Dr. Hercules Panayiotou appeals the order of the Mobile Circuit Court denying his motion for a summary judgment in the medical-malpractice action filed against him by Jamie Sullivan Johnson, as administratrix of the estate of Mae Sullivan, deceased. We reverse and remand.

I.

On March 7, 2002, Dr. Panayiotou performed a heart-catheterization procedure on Mae Sullivan at the Mobile Infirmary Medical Center. During the course of the procedure, a coronary artery ruptured. Emergency coronary artery bypass surgery was performed; however, Sullivan died on March 9, 2002.

On March 8, 2004, Johnson sued Dr. Panayiotou, Mobile Infirmary Medical Center, and Dr. Panayiotou's medical practice, IMC Diagnostic & Medical Clinic, P.C., in the Mobile Circuit Court, alleging medical malpractice.¹ On May 11, 2007, Dr. Panayiotou moved for a summary judgment arguing that Johnson could not establish, by substantial evidence, that he had breached the appropriate standard of care during his treatment of Sullivan. Specifically, Dr. Panayiotou argued that because Johnson's action was governed by the Alabama Medical Liability Act, § 6-5-540 et seq., Ala.Code 1975 ("the AMLA"), Johnson was required to present expert testimony from a "similarly situated health care provider" to establish a breach of the standard of care. See Holcomb v. Carraway, 945 So.2d 1009, 1012 (Ala.2006) (stating that a plaintiff ordinarily must present expert testimony to establish that a defendant health-care provider failed to meet the standard of care; however, "such expert testimony is allowed only from a `similarly situated health care provider'"). Dr. Panayiotou further argued that the only expert witness identified by Johnson, Dr. Jay N. Schapira, was not a "similarly situated health care provider" as that term is defined in § 6-5-548(c) because, he says, while Dr. Panayiotou was certified by the American Board of Internal Medicine ("ABIM") in internal medicine, cardiovascular disease, and interventional cardiology, Dr. Schapira was certified by ABIM in only internal medicine and cardiovascular disease.² Therefore, Dr. Panayiotou argued, because it was undisputed that he was practicing interventional cardiology when he performed the heart-catheterization procedure on Sullivan, Dr. Schapira was not a similarly situated health-care provider eligible to provide expert testimony regarding the standard of care. In conjunction with his motion for a summary judgment, Dr. Panayiotou submitted an excerpt of his own deposition in which he stated that he received his "interventional cardiology certification the first time [the examination] was ever given in 1999" and a copy of his curriculum vitae showing, under a heading listing the examinations he had passed:

"ABIM: Internal Medicine, 25 September 1991

"ABIM: Cardiovascular Subspecialty, November 1993

"ABIM: Interventional Cardiology, November 1999."

On June 14, 2007, Johnson filed her response to Dr. Panayiotou's summary-judgment motion, arguing that § 6-5-548(c) requires only that an expert witness be certified in the same "specialty" as the defendant to be considered a similarly situated health-care provider and that Dr. Panayiotou and Dr. Schapira are in fact both certified in the same specialty—internal medicine. Cardiovascular disease, she argues, is actually a "subspecialty" of internal medicine, and interventional cardiology is, at best, she argues, another "subspecialty" of internal medicine. However, she argues, interventional cardiology is more properly viewed as a subspecialty of cardiovascular disease and thus a "sub-subspecialty" of internal medicine.

Johnson also argued that, although Dr. Panayiotou held an ABIM-issued "certificate of added qualification" in interventional cardiology at the time he performed the heart catheterization on Sullivan, ABIM did not formally recognize interventional cardiology as a subspecialty of cardiovascular disease until July 2006. In support of her argument, she submitted printed copies of pages from the Web sites of both ABIM and the American Board of Medical Specialties ("ABMS") indicating that, on July 14, 2006, ABIM, in an attempt to standardize the way it recognized subspecialties, announced that it now recognized all certificates of added qualifications as subspecialties of internal medicine.³ Johnson also submitted an affidavit from Dr. Schapira in which he stated that

"Dr. Panayiotou was not board certified in the specialty or subspecialty of interventional cardiology at the time of the incident made the basis of this suit (March 9, 2002), but rather had a `certificate of added qualification' that was not recognized as either a specialty or a subspecialty by [ABMS] ... until July of 2006 when [ABIM] reclassified the `certificate of added qualification' in interventional cardiology as a subspecialty of cardiology."

Finally, Johnson also submitted a copy of Dr. Panayiotou's curriculum vitae and noted that it specifically designated the examination he passed in November 1993 as being for the "Cardiovascular Subspecialty" (emphasis added), but the November 1999 examination was merely listed as being for "interventional cardiology" with any description of that practice as a subspecialty conspicuously absent.⁴

After receiving Johnson's motion opposing his summary-judgment motion, Dr. Panayiotou filed, on June 18, 2007, a motion asking the trial court to strike Dr. Schapira's affidavit on the ground that it contradicted his previous sworn testimony.⁵ See Wilson v. Teng, 786 So.2d 485, 497 (Ala. 2000) ("This Court has held that `a party is not allowed to directly contradict prior sworn testimony to avoid the entry of a summary judgment.'" (quoting Continental Eagle Corp. v. Mokrzycki, 611 So.2d 313, 317 (Ala.1992))). The next day, June 19, 2007, Dr. Panayiotou filed another motion asking the trial court also to strike the printed copies of pages taken from ABMS and ABIM's respective Web sites on the ground that the documents were unsworn, uncertified, unauthenticated, and, therefore, inadmissible. See Carter v. Cantrell Mach. Co., 662 So.2d 891, 893 (Ala.1995) ("The documents were not properly authenticated and, thus, they were inadmissible hearsay, which cannot be relied on to defeat a properly supported motion for a summary judgment."). Dr. Panayiotou simultaneously submitted a personal affidavit in which he made the following statements:

"2. I am a physician duly licensed to practice medicine in the State of Alabama and was so licensed at the relevant times. I am certified by [ABIM] as a specialist in Internal Medicine, Cardiology and Interventional Cardiology and was so certified at the relevant times.

"3. [ABIM] formally recognized certification in the subspecialty of Interventional Cardiology in 1999. In 1999, as part of the certification process in Interventional Cardiology, I submitted verified data to the Board stating that I had successfully accomplished the appropriate number of interventional cardiology procedures to enable me to take the examination for certification in Interventional Cardiology.

"4. As a result of passing this examination, [ABIM] certified me as a specialist in the subspecialty of Interventional Cardiology.

"5. By meeting the certification requirements of [ABIM], beginning in 1999 I was allowed to represent to the public that I am board-certified in the subspecialty of Interventional Cardiology."

On June 21, 2007, Dr. Panayiotou submitted two additional affidavits. In the first, ABIM official Joan Otto swore that "[ABIM] recognized certification in Interventional Cardiology in 1999" and that "Dr. Panayiotou was certified by [ABIM] in Interventional Cardiology in 1999." In the second, Amy A. Mosser, vice president of administration and operations for ABMS, swore as follows:

"5. ABMS approved the certification process for Interventional Cardiology in 1996 and began recognizing certification in this subspecialty in 1999, when the first certifying examination was offered by the ABIM.

"6. ABIM, like other Member Boards, originally designated its board certification for subspecialties as a `certificate of added qualifications.' This was in conformity with general ABMS practice at that time. Subsequently, ABMS decided to transition away from such language. The ABMS Bylaws in effect in 2002 required future applications for subspecialty certificates to be designated as subspecialty certificates, but gave the Member Boards discretion to continue designating existing subspecialty certificates as certificates of added qualifications or special qualifications or to discontinue those terms and simply use the subspecialty designation. These differences in terminology are just that, however, and have no substantive effect on ABMS's recognition of certification. ABMS has continually recognized ABIM certification in the subspecialty of Interventional Cardiology since its inception in 1999."

On August 15, 2007, the trial court denied Dr. Panayiotou's motion for a summary judgment, holding that Dr. Schapira was a similarly situated health-care provider "regardless of [his] lack of sub-subspecialty certification" and without addressing whether Dr. Panayiotou was actually certified as a specialist in interventional cardiology in March 2002 when he performed the heart catheterization on Sullivan. The trial court simultaneously entered an order granting Dr. Panayiotou's "motion to strike" without specifying whether it intended to grant the June 18 motion to strike, the June 19...