Reformulating medical malpractice: Ex parte Healthsouth Corp. and its ramifications for medical malpractice law in Alabama.

AuthorGrimes, John


In Ex parte Healthsouth Corp., the Alabama Supreme Court held that a patient was not required to present expert testimony to prove that an alleged failure of a nursing staff to respond to the patient's call was a breach of the standard of care. (1) This holding is a departure from the court's rulings in previous cases that required expert testimony in all medical malpractice cases except those "where want of skill or lack of care is so apparent ... as to be understood by a layman, and requires only common knowledge and experience to understand it." (2) In previous cases, the court has held that the exception is limited to cases involving a foreign instrumentality found in the plaintiff's body following surgery, an injury not connected to the condition for which the plaintiff sought treatment, a recognized standard or authoritative medical text or treatise to prove what is or is not proper practice, and a plaintiff who is himself or herself a medical expert. (3)

The Healthsouth ruling is contrary to the legislative intent that is clearly stated in the Alabama Medical Liability Act (AMLA). (4) This decision also violates stare decisis because it differs from previous rulings of the court in medical malpractice cases. Neither the concurring opinion nor the dissenting opinion solves this problem. The best solution would be to follow the court's rule laid out in Anderson v. Alabama Reference Laboratories. (5)

The AMLA codified medical malpractice law in Alabama, and the stated purpose of the Act is to limit medical malpractice cases in order to stabilize health care costs and medical malpractice liability insurance premiums. (6) Despite no mention in the Act of an exception to the rule requiting expert testimony, the Alabama Supreme Court has interpreted the Act to include the common-law exception, and the court listed four situations that fall within that exception. (7) In Healthsouth, the court held that its previous limitation of the exception to four situations was too restrictive. (8) The court reformulated the rule to include a failure to respond to a patient's call within a reasonable time. (9)

The court's reformulation of the rule in Healthsouth is contrary to the legislative intent codified in the AMLA because it weakens protections afforded by the Act to health care providers. The opinion ignores the state legislature's concern regarding a health care crisis. The concurring opinion, that this case is one of simple negligence. (10) is contrary to the opinions of nursing experts who consider basic day-to-day care as part of the nursing process. (11) The Chief Justice's dissenting opinion that there should be no exceptions to the rule requiting expert testimony (12) is unnecessary because the four examples to the common-law exception do not threaten the legislative intent articulated in the AMLA. A holding that placed the facts of the Healthsouth case outside the four examples to the exception laid out in Anderson would have been consistent with stare decisis and legislative intent.

This Note provides the legal background of the Ex parte Healthsouth case and a statement of the facts and procedure. Secondly, this Note provides an analysis of the majority, concurring, and dissenting opinions. Finally, this Note suggests that the result reached in Healthsouth deviated from precedent and that all three opinions did not articulate the most plausible answer.


Before 1975, medical malpractice cases in Alabama were decided under Alabama common law. (13) A physician's standard of care was the degree of care and skill exercised by physicians in the same general neighborhood, pursuing the same general line of practice. (14) A plaintiff was required to prove that the physician breached the standard of care, and that the breach was a proximate cause of injury or death. (15) A Showing of a negative medical result of the physician's care was not enough to meet the plaintiff's burden. (16) Ordinarily, in a medical malpractice case, proof of a breach of the standard of care could be established only by expert medical testimony. (17) An exception to that rule applied to cases in which a physician's lack of skill was so apparent that a layperson could understand it and determine it to be a departure from the standard of care. (18) Pre-1975 cases that applied the exception concerned the leaving of objects in the patient's body or injuries to the patient's body that were remote from the area of operation. (19)

Parrish v. Spink is an example of a pre-1975 case in which the Alabama Supreme Court applied the common law regarding medical malpractice. (20) In Parrish, a patient had teeth extracted by an oral surgeon. After the operation, she developed a sore on her mouth near the area in which one of her teeth was cut out. (21) The patient filed a malpractice suit claiming that the surgeon breached the standard of care. The only witness for the plaintiff was the defendant, who testified that he did not breach the standard of care because it was a normal operation from which the plaintiff did not heal as normal persons do. The Alabama Supreme Court held that in the absence of expert testimony that the defendant breached the standard of care, the jury could not conclude that negligence occurred, and, thus, the court affirmed the jury verdict in favor of the defendant. (22)

In 1975, the Alabama Legislature codified medical malpractice law by enacting the Alabama Medical Liability Act. (23) The standard of care under the AMLA is almost identical to that of common law, which suggests a need for expert testimony, but the Act does not address the common law exception providing that when the lack of care is so apparent that a layperson can understand it, expert testimony is not needed. (24)

In 1987, the legislature supplemented the AMLA with the Alabama Medical Liability Act of 1987. (25) The Act redefined the standard of care as "reasonable care, skill, and diligence as other similarly situated health care providers in the same...

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