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03/17/95 JOYCE M. RODGERS v. DR. R. CLYNE ADAMS

March 17, 1995

JOYCE M. RODGERS
v.
DR. R. CLYNE ADAMS, D.M.D.



Appeal from Cullman Circuit Court. (CV-92-388). Fred Folsom, TRIAL JUDGE.

Released for Publication June 27, 1995.

Shores, Justice. Maddox, Almon, Ingram, Cook, and Butts, JJ., concur.

The opinion of the court was delivered by: Shores

SHORES, JUSTICE.

The issue presented in this case is whether a prosthodontist is a "similarly situated health care provider," as defined in § 6-5-548, Ala. Code 1975, in relation to a general dentist, so that, as such, he may provide expert testimony regarding the standard of care in a dental malpractice case.

In April 1984, Dr. R. Clyne Adams, D.M.D., began providing Joyce M. Rodgers with general dental treatment. Dr. Adams is a dentist practicing in Cullman, Alabama, and is licensed by the State of Alabama to practice general dentistry. In November 1990, he inserted a bridge on the right side of Rodgers's mouth. Soon thereafter, Rodgers began complaining of pain in her mouth, and she saw Dr. Adams 10 times in the following 4 months to try to alleviate her problems. While Dr. Adams continued to provide Rodgers with dental treatment, he could not find the cause of her pain. Dr. Adams last saw Rodgers on April 22, 1991.

In August 1991, Rodgers sought treatment at the office of faculty practice at the University of Alabama at Birmingham ("UAB"), from a prosthodontist, Dr. Dean Ramus, D.D.S., because of continuing problems with her teeth. Dr. Ramus is licensed to practice general dentistry, *fn1 is certified in prosthodontics, and currently teaches at the University of Southern California ("USC") School of Dentistry. Dr. Ramus treated Rodgers on numerous occasions following her initial visit, and, eventually, he corrected the problem.

In August 1992, Rodgers sued Dr. Adams, seeking monetary damages for severe pain and emotional distress she says were caused by what she contends was an improperly installed and adjusted bridge and also for improper use and/or removal of cement in her mouth. Dr. Adams filed a motion for summary judgment, stating in a supporting affidavit that he had met the applicable standard of care in treating Rodgers. In response, Rodgers submitted Dr. Ramus's expert affidavit stating to the contrary. Following additional discovery, Dr. Adams renewed his motion for summary judgment, alleging that Rodgers had presented no admissible evidence of malpractice, because, he contended, Dr. Ramus was not qualified to testify under Ala. Code 1975, § 6-5-548. On August 12, 1994, the trial court granted Dr. Adams's motion for summary judgment, holding that "Dr. Ramus was engaged in a practice that was totally different to that of Dr. Adams' practice." C.R. at 61.

Rule 56, A. R. Civ. P., sets forth a two-tiered standard for determining whether to enter a summary judgment. In order to enter a summary judgment, the trial court must determine: 1) that there is no genuine issue of material fact, and 2) that the moving party is entitled to a judgment as a matter of law. In determining whether the summary judgment was properly entered, the reviewing court must view the evidence in a light most favorable to the nonmovant. See Turner v. Systems Fuel, Inc., 475 So. 2d 539, 541 (Ala. 1985); Ryan v. Charles Townsend Ford, Inc., 409 So. 2d 784 (Ala. 1981). Rule 56 is read in conjunction with the "substantial evidence rule" (§ 12-21-12, Ala. Code 1975), for actions filed after June 11, 1987. See Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala. 1989). In order to defeat a properly supported motion for summary judgment, the plaintiff must present "substantial evidence," i.e., "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989).

On appeal from the summary judgment, Rodgers contends that Dr. Ramus's affidavit raised genuine issues of material fact and thus made a summary judgment inappropriate. Dr. Adams argues that the qualifications of Dr. Ramus, the plaintiff's only proffered expert witness, do not conform to Ala. Code 1975, § 6-5-548, because, he says, Dr. Ramus is not a "similarly situated health care provider." For this reason, Dr. Adams contends that the affidavit submitted by Rodgers was inadmissible and that Rodgers, therefore, offered no admissible evidence in opposition to the motion for a summary judgment. See Swendsen v. Gross, 530 So. 2d 764, 768 (Ala. 1988).

According to Alabama's general rule in medical malpractice cases, a physician's failure to comply with the standard of care can be established through: (1) expert medical testimony as to the proper medical treatment and procedure, or (2) layperson testimony in circumstances where the lack of proper treatment is "so apparent as to be within the comprehension of the average layman." Lollar v. Tankersley, 613 So. 2d 1249, 1253 (Ala. 1993); Pruitt v. Zeiger, 590 So. 2d 236, 237-38 (Ala. 1991); Swendsen v. Gross, 530 So. 2d 764, 768 (Ala. 1988) (quoting Powell v. Mullins, 479 So. 2d 1119, 1120 (Ala. 1985)). The trial court has considerable discretion in allowing or disallowing expert testimony, based on questions of competency, unless there has been palpable error. Lollar v. Tankersley, 613 So. 2d 1249, 1253 (Ala. 1993); see also Brown v. Lawrence, 632 So. 2d 462, 464 (Ala. 1994); Hall v. CSX Transp., Inc., 631 So. 2d 1013, 1016 (Ala. 1994).

The Alabama Medical Liability Act of 1987 ("Medical Liability Act"), Ala. Code 1975, § 6-5-540 et seq., governs this action against Dr. Adams, who is a "health care provider" as defined in Ala. Code 1975, § 6-5-481(6) and § 6-5-542(1). *fn2 According to the Medical Liability Act, Rodgers's burden of proof in this dental malpractice action is to prove by substantial evidence that Dr. Adams "failed to exercise such reasonable care, skill and diligence as other similarly situated health care providers in the same general line of practice, ordinarily have and exercise in a like case." §§ 6-5-548(a) and -542(2); see, e.g., Charles W. Gamble, McElroy's Alabama Evidence § 84.01(7) (4th ed. 1991); Parker v. Collins, 605 So. 2d 824, 826 (Ala. 1992); Dowdy v. Lewis, 612 So. 2d 1149, 1151 (Ala. 1992); Medlin v. Crosby, 583 So. 2d 1290, 1292 (Ala. 1991); Pruitt v. Zeiger, 590 So. 2d 236, 237 (Ala. 1991) (citations omitted) (emphasis added).

To support her claim of negligence, Rodgers presented the expert testimony of Dr. Ramus, another "health care provider." Under the Medical Liability Act, Dr. Ramus must be "similarly situated" as to Dr. Adams, and Dr. Adams argues that Dr. Ramus was not so situated, according to the statute. Ala. Code 1975, § 6-5-548(e). Thus, the question here is whether Dr. Ramus, a prosthodontist, was as to Dr. Adams, a general dentist, "similarly situated."

In Medlin v. Crosby, 583 So. 2d 1290 (Ala. 1991), this Court established an analytical framework for determining if an expert witness was properly qualified to testify in a medical malpractice case. Medlin requires that a trial court answer the following questions before determining whether a proffered ...


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