The Alabama Supreme Court has decided three medical malpractice cases in the last few months: Giles v. Brookwood Health Services, Weber v. Freeman, and Panayiotou v. Johnson. All three were decided in favor of the defendant doctor. All three take the decision as to who was at fault for the plaintiffs’ injuries/death out of the hands of the jury. I thought the Alabama medical malpractice lawyers in all three cases made quality arguments that the cases should go to a jury.
Giles was a complicated case involving three defendants. What I found frustrating about the opinion is that the court essentially told the Plaintiff’s expert that “you really say what you think you said” about the standard of care. Why take this kind of medical malpractice case out of a jury’s hands?
Weber involved a nice Alabama rule to allow medical malpractice lawyers to name fictional defendants when the lawyer does not know who the real defendants are. Alabama Rule 9(h), Ala. R. Civ. P., provides:
“When a party is ignorant of the name of an opposing party and so alleges in the party’s pleading, the opposing party may be designated by any name, and when that party’s true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name.”
Great rule. So the question in the case hinged on whether Plaintiff’s medical malpractice lawyer was “ignorant” of the identity of two of the defendants.
The Plaintiff’s lawyer argued that the substitution should be permitted, because she says when she filed her original complaint, she was unaware of the hospitals’ protocol requiring radiologists to notify emergency-room personnel if they discovered a life-threatening condition in a patient who had left the emergency room. But the court said the lawyers were not “ignorant” of a relationship that gave rise to a duty and that they knew that the identity of the health care providers. Accordingly, given the facts of this case, there was a reasonable, good-faith basis for counsel to have named the doctor in the original complaint and the lawyer’s failure to do so fatally bars the medical malpractice claim.
That’s cutting it real thin, particularly when the Alabama court went in a different direction one year before in Ex parte Bowman which arguably was factually similar. These lawyers did the right thing not suing everyone in sight and this is the thanks that they get.
In Panayiotou, the Alabama court overruled the Mobile Circuit Court in finding that a doctor did not have the necessary subspecialty to offer expert opinions. This is an awful ruling for two reasons. First, as the dissent points out, the plaintiff’s expert had experience similar to or greater than the defendant doctor. Doesn’t this count for something? Even more unfairly, the Alabama court is clearly making new Alabama law. Fine. But is it fair to spring a new rule on the Plaintiff in this case? Wouldn’t justice remand to the trial court with instructions to allow Plaintiff’s lawyer to find a new expert who meets this new standard?
Alabama, famously called a “judicial hellhole,” has taken a lot of heat by tort reform advocates Are these judges, elected by the voters, responding to this pressure and the pressure from campaign contributors who support insurance companies? Who knows? But I can tell you I think they made unjust calls in all three of these cases.