A woman presented to the University of Alabama at Birmingham Hospital (UAB Hospital) complaining that she had been suffering from severe headaches for approximately two weeks. A CT scan of her brain revealed the presence of a large unruptured intracranial aneurysm on the ophthalmic artery. She was placed in the care of a board-certified neurosurgeon in UAB Hospital's Department of Neurosurgery, who recommended performing surgery to repair the aneurysm. The neurosurgeon performed an open craniotomy to clip the aneurysm.
The following day the neurosurgeon ordered an additional CT scan and an arteriogram as part of his routine follow-up care for neurosurgery patients in order to confirm that the woman was recovering from the surgery as expected and experiencing no complications. The CT scan indicated that there was a small amount of residual blood at the surgery site and a little swelling, which was not uncommon after surgery. The tests confirmed that the clip was properly placed on the aneurysm.
Later that night, the woman began complaining of headaches and appeared disoriented. A neurosurgery resident discovered she was in distress during rounds the next morning. The neurosurgery resident ordered additional IV saline; requested a CT scan; and apprised the attending physician, the neurosurgeon who performed the woman’s surgery, of her condition.
Shortly after the neurosurgery resident left the woman’s room, her husband noticed that she was snoring loudly. He alerted a nurse, who determined that the woman had gone into respiratory arrest and summoned an emergency resuscitation team. The team resuscitated the woman.
She underwent another CT scan which revealed some residual blood at the site of the aneurysm repair and early onset swelling of the brain. The neurosurgeon and the neurosurgery resident suspected that the residual blood caused by the aneurysm repair triggered vasospasm. Vasospasm is the constriction of blood vessels, which can be caused by blood from a ruptured aneurysm. The constriction of blood vessels restricts the flow of blood to the brain which in turn causes the brain to shut down. The woman died when her brain herniated through the base of her skull.
The deceased patient's husband, as the personal representative of the patient's estate, filed claims under the Alabama Medical Liability Act (AMLA) against the University of Alabama Health Services Foundation (Foundation), neurosurgeon, and neurosurgery resident.
The Jefferson Circuit Court granted summary judgment to the neurosurgery resident. The trial court based its grant on the deposition testimony of the plaintiff's neurosurgeon expert, who testified that the neurosurgery resident had discharged his duty to the patient by immediately contacting the attending physician, the defendant neurosurgeon, to advise him of the pertinent information regarding the patient's condition.
Regarding the neurosurgeon and the Foundation, the trial court found that the applicable standard of care alleged to have been breached was that of a neurosurgeon performing postoperative care of a neurosurgical patient, that the plaintiff’s internist/neurologist expert witness did not specialize in neurosurgery, and that the plaintiff’s internist/neurologist expert witness was not a similarly situated health-care provider to the neurosurgeon at the time of the alleged breach of the standard of care. Therefore, the trial court concluded, the plaintiff’s internist/neurologist expert witness could not testify as to the alleged breach of the standard of care. However, the trial court also determined that the plaintiff’s internist/neurologist expert witness had offered causation testimony that was not specifically addressed by the defendants' motion for a summary judgment and, thus, that he could testify as to causation at trial. Furthermore, the trial court determined that the plaintiff’s neurosurgeon expert witness was a similarly situated health-care provider at the time of the alleged breach and that he had testified that the neurosurgeon had breached the appropriate standard of care by failing to consult with an internist when the patient began showing signs of confusion and disorientation. Thus, the trial court concluded that the neurosurgeon and the Foundation were not entitled to a summary judgment.
After a jury trial, the trial court entered judgment in favor of the neurosurgeon and Foundation. The court also denied the defendants’ subsequent motion to dismiss the complaint as being void ab initio, in which they argued that the deceased patient’s husband had failed to qualify as the personal representative of the patient's estate in the State of Alabama. The husband and defendants appealed.
The Supreme Court of Alabama affirmed the summary judgment entered in favor of the neurosurgery resident, the judgment entered on the jury verdict in favor of the neurosurgeon and the Foundation, and the trial court's order denying the defendants' post-verdict motion to dismiss. Regarding the expert testimony the court issued three holdings. First, a board-certified neurosurgeon was practicing within that field of specialization while administering postoperative care to the patient, such that an expert witness proffered by the patient's estate could only be considered a similarly situated health care provider if that witness was certified by the same American board in the same specialty. Second, the court held that another expert witness proffered by the estate was not a similarly situated health-care provider to a third-year neurosurgery resident, and therefore could not offer an expert opinion as to any alleged breach of the standard of care by the resident in the postoperative treatment of the patient. Third, the evidence that the third-year resident was actually rendering postoperative care and treatment to the patient did not address or rebut the testimony by the expert for the patient's estate that the resident discharged his duty to the patient by immediately notifying the neurosurgeon of the patient's change in condition. Finally, with regard to the patient's husband, the court held that as a foreign personal representative of the patient’s estate, he was not required to obtain an ancillary appointment as the personal representative in the state of Alabama before bringing a medical malpractice action in that state involving a death occurring in that state.
The court held that the trial court did not exceed its discretion when it found that the plaintiff’s internist/neurologist expert witness was not a similarly situated health-care provider and refused to allow him to testify as to the neurosurgeon's and the neurosurgery resident's alleged breaches of the standard of care. Trial courts enjoy discretion when determining whether a witness is qualified to testify as an expert in a medical-malpractice action under the AMLA. Generally, to determine whether a defendant health-care provider qualifies as a specialist, a court must first determine the field of medical practice in which the negligence is alleged to have occurred. If the defendant health-care provider is a specialist in the field of practice in which the alleged negligence occurred, then the proffered expert witness must also be a specialist in that field.
Here, the trial court did not err in determining that the appropriate standard of care to be considered was that of a neurosurgeon performing post-operative care of a neurosurgical patient, because the evidence supported the conclusion that the neurosurgeon was a specialist and was practicing within the field of his specialization as a neurosurgeon while administering postoperative care to the patient. The plaintiff’s internist/neurologist expert witness was not a board-certified specialist in neurosurgery. Thus, the plaintiff’s internist/neurologist expert witness was not a similarly situated health-care provider to the neurosurgeon and could not have properly testified as an expert witness as to the standard of care applicable to the neurosurgeon. Any overlap or similarity in the practice of a board-certified neurosurgeon and a board-certified specialist in internal medicine in the postoperative care of a neurosurgery patient, in terms of monitoring fluid and electrolyte levels, was irrelevant.
The court held that the trial court did not err in entering a summary judgment in favor of the neurosurgery resident. In so holding, the court noted that the plaintiff’s internist/neurologist expert witness was not a similarly situated health-care provider to the neurosurgery resident, and therefore could not offer an expert opinion as to any alleged breach of the standard of care by the neurosurgery resident in his postoperative treatment of the patient. In addition to the fact that the plaintiff’s internist/neurologist expert witness was not a board-certified specialist in neurosurgery, the court noted that he was not trained or experienced in the practice of neurosurgery, had last treated a postoperative neurosurgery patient in a hospital ten years prior to the events giving rise to the present action, and had last taken care of an aneurysm patient for any reason 12 years prior to those events.
Additionally, the court noted that evidence that the neurosurgery resident actually rendered postoperative care and treatment to the patient did not address or rebut testimony by the plaintiff’s neurosurgeon expert witness that the neurosurgery resident discharged his duty to the patient by immediately notifying the neurosurgeon, who was the attending physician, of the patient's change in condition.
The court held that the trial court did not err in denying the neurosurgeon and Foundation’s post-verdict motion to dismiss challenging the husband's capacity to sue. The court reasoned that the doctrine denying the personal representative the right to sue in a jurisdiction other than that of his appointment is predicated on the idea that local creditors must be first satisfied before the representative may be permitted to recover local assets and remit them to another jurisdiction. The reason for the rule ceases to exist when the recovery is not subject to claims of the deceased's creditors, but is to be distributed among the statutory beneficiaries. Therefore, the patient's husband, as foreign personal representative of estate, was not required to obtain an ancillary appointment as a personal representative in the state of Alabama before bringing the medical malpractice action in Alabama involving a death occurring in Alabama.
See: Smith v. Fisher, 2013 WL 4618723 (Ala. August 30, 2013) (not designated for publication).
See the October 2013 Medical Law Perspectives Report: Failure to Diagnose Brain Aneurysm, to be published October 2, 2013.
See also Medical Law Perspectives, June 2012 Report: Too Much, Too Little, Too Late: Injuries from Delays and Failures to Perform CT Scans or Overexposure to Radiation