Appeal from Mobile Circuit Court. (CV-91-001870). Douglas I. Johnstone, Trial Judge.
Released for Publication December 7, 1994.
Maddox, Shores, Houston, and Steagall, JJ., concur. Cook, J., concurs in the result. Kennedy, and Ingram, JJ., Dissent.
The opinion of the court was delivered by: Maddox
The plaintiffs appeal from a summary judgment in a medical malpractice case. The sole issue is one this Court has considered before: Whether Alabama should abandon its traditional rules of proximate cause and recognize the "loss of chance doctrine." In McAfee v. Baptist Medical Center, [Ms. 1920827, April 22, 1994] ___ So. 2d ___ (Ala. 1994), this Court considered cases involving a factual setting quite similar to the one presented here. In each of those medical malpractice cases, after the defendant physician or physicians produced evidence that their actions did not cause the patient's condition to worsen, the trial court ruled that the plaintiffs had failed to present substantial evidence that the alleged negligence of the physicians probably caused the injuries that the plaintiffs complained of; in each case, the court entered a summary judgment and this Court affirmed.
In this case, the issue is whether the plaintiffs, Phtruda Williams and her husband Floyd Williams, Jr., through their expert witness, Dr. Thomas Browne, produced substantial evidence that the defendant Spring Hill Memorial Hospital ("Spring Hill") probably caused the injury to Mrs. Williams.
The plaintiffs alleged medical negligence against Dr. Joseph Ray; Mobile Orthopedic Center, P.A.; Dr. Jon Botts; C.R.N.A. Paula Green and Anesthesia Associates of Mobile, P.C.; as well as against Spring Hill Memorial Hospital ("Spring Hill").
Phtruda Williams entered Spring Hill Hospital to undergo a lumbar laminectomy with fusion. Sometime after the surgery, she was unable to move her feet, but, the plaintiffs allege, the surgeon was not made aware of this fact until 12 hours after the surgery. The surgeon, Dr. Ray, and the anesthesiologist, Dr. Botts, both testified that they would have instituted certain therapies earlier had they been notified. Mrs. Williams, now a paraplegic, contends that her paraplegia could have been arrested and improved (with steroid treatment) had the Spring Hill nurses notified the physicians as soon as her paralysis was noted.
Spring Hill filed a motion for summary judgment, supported by evidence that its actions, or lack of action, did not cause Mrs. William's condition to worsen. As the trial court had done in McAfee, the trial court here ruled that the plaintiffs had failed to present substantial evidence that the alleged negligence of the Hospital probably caused the injuries that the plaintiffs complained of, and it entered a summary judgment for Spring Hill. We cannot distinguish the facts of this case from those presented in McAfee.
In McAfee, this Court wrote the following regarding a summary judgment in a medical malpractice case,
"Rule 56 must be read in conjunction with the 'substantial evidence rule' as defined by Ala. Code 1975, § 6-5-542(5), part of the Alabama Medical Liability Act:
"'(5) SUBSTANTIAL EVIDENCE. Substantial evidence is that character of admissible evidence which would convince an unprejudiced thinking mind of the truth of the fact to which the evidence is directed.'
"'When the movant makes a prima facie showing that no genuine issue of material fact exists, . . . the burden shifts to the nonmovant to show 'substantial evidence' in support of his position.' Leonard v. Providence Hospital, 590 So.2d 906, 907 (Ala. 1991).
"In medical malpractice cases, the plaintiff must prove that the alleged negligence 'probably caused the injury.' Parrish v. Russell, 569 So.2d 328, 330 (Ala. 1990), citing Williams v. Bhoopathi, 474 So.2d 690, 691 (Ala. 1985). This has been the standard in Alabama for decades. In the 1929 ...