Zills v. Brown

• Decision Date: 28 March 1980
• Citation: 382 So.2d 528
• Parties: Brenda ZILLS, etc. v. Dr. Harry G. BROWN et al. 78-322.
• Court: Alabama Supreme Court

Page 528

382 So.2d 528

Brenda ZILLS, etc. v. Dr. Harry G. BROWN et al.

78-322.

Supreme Court of Alabama.

March 28, 1980.

Oren R. Lewis, Jr. and Gary R. Sheehan of Lewis, Wilson, Lewis & Jones, Arlington, Va., B. T. Gardner, Jr. of Stansell, Gardner & Stolsworth, Tuscumbia, for appellant.

Robert O. Cox of Poellnitz, Cox, McBurney & Jones, Florence, for appellees.

PER CURIAM.

This appeal by plaintiff Brenda Zills, widow and administratrix of the estate of Thomas Jerry Zills, is from judgment entered upon a jury verdict in favor of defendants, The Florence Clinic, Dr. Harry G. Brown and Dr. W. S. Bradley, Jr., in a medical malpractice action. We reverse and remand.

Both plaintiff and defendants specify numerous issues in their respective briefs, but the dispositive issue in this case is whether the trial court erred to reversal when it applied the locality rule to exclude testimony in behalf of plaintiff by medical experts, more particularly the testimony of plaintiff's medical expert witness, Dr. John Carpenter, Jr., concerning the standard of treatment administered to Thomas Zills by Dr. Brown.

This is a medical malpractice action seeking damages for the death of Thomas Zills resulting from the negligence of Drs. Brown and Bradley, both of whom are board certified urologists, ¹ for failing to timely diagnose and properly treat Zills' cancer of the testicle (a type known as testicular seminoma) by timely and proper removal of the diseased testicle followed by radiation therapy. Although Zills had also been examined and treated by Dr. Brown's partner, Dr. Bradley, he was the patient of Dr. Brown and primarily in the care of the latter doctor.

During the trial of this action four medical experts testifying in behalf of plaintiff were prohibited by the trial court from giving their respective opinions as to whether the treatment of Zills' testicular seminoma administered by Dr. Brown was in accord with the requisite standard of medical care generally adhered to in treating that disease. The prohibition was based upon the fact that neither could state he was personally familiar with the standard of care followed by urologists, or other physicians, treating seminoma in the Florence, Alabama community. Three of those four experts are out-of-state physicians who are highly qualified regarding the care and treatment of patients afflicted with seminoma; however, none of them are personally familiar with the standard of treatment obtaining in the Florence community.

The fourth is Dr. John Carpenter, Jr., who: (1) is a specialist in the treatment of cancer; (2) is on the faculty and staff of the School of Medicine of the University of Alabama at Birmingham; (3) is a consulting physician participating in the medical information system via telephone (MIST) at the Medical Center of that school of medicine, in which capacity he has daily contact with physicians from all parts of the state and assists them in the diagnosis and treatment of cancer; (4) has consulted with numerous doctors in North Alabama in the general vicinity of Florence concerning the treatment of various types of cancer; (5) has lectured on at least one occasion in Florence at a cancer seminar; and (6) testified he was familiar with the degree of care, skill and diligence which is ordinarily used by physicians treating cancer in North Alabama and in the vicinity of Florence.

The trial court refused to allow Dr. Carpenter to testify to the quality of the treatment administered Zills by defendants because Dr. Carpenter could not state he knew:

" * * * the degree of care, skill and diligence which was ordinarily possessed and used by physicians and surgeons in the general vicinity or general community of Florence, Alabama, during the period of 1974, 1975 with reference to their treatment of seminoma."

Apparently, the trial court based its ruling on the further fact that Dr. Carpenter could not testify he knew whether physicians and surgeons in the Florence vicinity or community treated seminoma in the same manner as other types of cancer were treated during the years 1974 and 1975.

In medical malpractice actions, Alabama adheres to the so-called "same general neighborhood" rule regarding the standard of care owed the patient by the physician. The rule has been stated as follows:

"In attending a patient a physician or surgeon undertakes to exercise that degree of care and skill as physicians and surgeons in the same general neighborhood, pursuing the same general line of practice ordinarily exercise in like cases. * * * " (Emphasis added.) Parrish v. Spink, 284 Ala. 263, 266, 224 So.2d 621, 623 (1969). See also § 6-5-484(a), Code 1975.

The plaintiff argues, and conceded at trial, that Alabama follows the so-called "strict locality" rule. This is inaccurate. The "strict locality" rule limits the standard of care owed to that degree of care exercised by physicians in the same geographical locality or community who are engaged in the same type practice. There is a significant distinction between the "strict locality" rule and the "same general neighborhood" rule, inasmuch as the latter is a liberalization of the former. See generally, Annot. 37 A.L.R.3d 420 (1971).

It is apparent from the record there was confusion as to which rule the trial court was applying. The confusion is occasioned by the trial court's use of interchanging terms such as Florence, Alabama, community, neighborhood, vicinity, locality, etc. Furthermore, these terms were never defined by the trial court when plaintiff's experts were asked by it whether they knew the standard of care exercised by physicians or surgeons in the Florence, Alabama, community in treating seminoma during 1974, 1975. It appears, from a reading of the transcript, in its entirety, the trial court was applying a very strict locality rule regardless of the words or phrases it used when referring to the standard of care.

Plaintiff vigorously urges that Alabama should abolish its present rule and adopt a rule of a national standard of care or, at least, a state-wide standard of care for physicians, particularly for specialists. We cannot, in this appeal, address that argument as error, because the record does not reflect a proper challenge to the "same general neighborhood" rule. We will, however, comment on this later in this opinion.

Plaintiff contends she argued extensively, before trial, that the present Alabama "same general neighborhood" rule does limit the standard of care owed by doctors and should be abolished; however, such arguments are not a part of the record. This court is bound by the record before it; and the burden is on the appellant to perfect and prosecute the appeal as required by law and the rules of this court and to see that all proceedings before the trial court are contained in the record on appeal. See Wilson v. Smith, 289 Ala. 374, 267 So.2d 446 (1972); J. H. Morris, Inc. v. Indian Hills, Inc., 282 Ala. 443, 212 So.2d 831 (1968). Plaintiff further omitted to preserve a challenge to Alabama's "same general neighborhood" rule by failing to properly object, stating adequate grounds, to the trial court's oral instructions or its refusal of her written requested instructions to the jury regarding this question. See Lollar v. Alabama Power Co., 371 So.2d 9 (Ala.1979); Odom v. Linsey, 365 So.2d 664 (Ala.1978).

We recognize that locality rules regarding standards of medical care, whether strict or liberalized, have come under attack in many jurisdictions, as well as by certain legal commentators. See, e. g., Speed v. State, 240 N.W.2d 901 (Iowa 1976); Blair v. Eblen, 461 S.W.2d 370 (Ky.1970); Shilkret v. Annapolis Emergency Hospital Association, 276 Md. 187, 349 A.2d 245 (1975); Shier v. Freedman, 58 Wis.2d 269, 206 N.W.2d 166 (1973). See generally, Annot., 37 A.L.R.3d 420 (1971); Annot., 21 A.L.R.3d 953 (1968); Medical Specialties and the Locality Rule, 14 Stan.L.Rev. 884 (1962); The Rise and Gradual Fall of the Locality Rule in Medical Malpractice Litigation, 18 De Paul L.Rev. 408 (1969). By holding that plaintiff did not properly preserve a challenge to Alabama's locality (general neighborhood) rule, we are not determining that we could not examine the validity and viability of that rule if a proper challenge to it was presented for our review.

From the record, it is apparent that plaintiff attempted to try the case within Alabama's "same general neighborhood" rule as that rule was interpreted by the trial court. It is also clear the trial court committed reversible error in its application of the rule when Dr. Carpenter was not permitted to give his opinion regarding the standard or quality of care Thomas Zills received from defendant doctors.

It appears without question that Dr. Carpenter was competent to testify as a medical expert about the treatment administered to Thomas Zills regardless of which rule is applied as to defendant doctors' duty of care. Ordinarily, the law requires expert medical testimony as to what is or is not the proper practice, treatment, or procedure, in a medical malpractice case; the lack of such evidence is a lack of proof of negligence and is fatal to a plaintiff's case. Parrish v. Spink, supra. Some of the exceptions to this rule are stated in Parrish. Among other exceptions are those instances where a recognized standard or authoritative medical text or treatise is employed to prove what is or is not proper practice, treatment, or procedure. The trial court's application of the locality rule made it impossible, as a practical matter, for plaintiff to meet the burden of proof concerning the proper degree of care owed Zills. The trial court held, essentially, that the only persons qualified to render expert testimony about the quality of the treatment administered Zills were those physicians qualified to treat seminoma, a rare cancer, in a very narrow region ambiguously referred to as the Florence community, during the period 1974, 1975.

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