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04/14/95 J. D. BIGGERS v. TONIA JOHNSON

April 14, 1995

J. D. BIGGERS
v.
TONIA JOHNSON



Appeal from Jefferson Circuit Court. (CV-92-02950). Josh Mullins, TRIAL JUDGE.

Released for Publication August 25, 1995.

Maddox, Shores, Kennedy, Ingram, Cook, and Butts, JJ., concur. Almon, and Houston, JJ., concur in the result.

The opinion of the court was delivered by: Maddox

MADDOX, JUSTICE.

This case involves alleged dental malpractice, and the sole issue presented is whether the trial court erred in determining that the plaintiff's expert witness was a "similarly situated health care provider" within the meaning of the Alabama Medical Liability Act of 1987, § 6-5-548(e), Ala. Code 1975.

The trial court declared a mistrial when the jury was unable to reach a verdict, and we granted the defendant dentist's Rule 5, Ala.R.App.P., petition for permission to appeal. After the mistrial, the defendant filed motions styled as a motion for a judgment notwithstanding the verdict and as a motion to alter, amend, or vacate the judgment. We have treated those motions as a motion for a judgment pursuant to the last sentence of Rule 50(b), Ala.R.Civ.P. *fn1

The defendant, Dr. J. D. Biggers, D.M.D., is a general dentist licensed to practice in Alabama. Dr. Biggers performed oral surgery on the plaintiff, Tonia Johnson, extracting her right third molar. After the procedure was performed, Johnson developed an infection that required her to be hospitalized.

She sued Dr. Biggers, claiming that he had breached the appropriate standard of care by failing to administer antibiotics before her operation. At the trial, Johnson offered the testimony of Dr. Frank Nelson as that of an expert, to establish that the defendant had violated the standard of care applicable to a dentist extracting a right third molar.

Dr. Biggers challenged Dr. Nelson's qualifications to testify as a "similarly situated health care provider," but the trial Judge permitted him to testify, stating, however, that the question whether he was a "similarly situated health care provider" was "a very, very, very close question" ( R. 429).

The sole issue presented on this appeal is whether the evidence shows that Dr. Nelson was qualified, under the provisions of law, to testify as an expert. The evidence tends to show: 1) that Dr. Nelson obtained his dental degree in 1974; 2) that he has been continuously licensed to practice dentistry in Alabama since 1974; 3) that he trained in oral surgery for three years at the University of Alabama in Birmingham ("UAB") from 1974 through 1977; and 4) that he retired from the "hands-on" practice of dentistry in 1981, when he began to suffer from a nerve disorder that caused his hands to go numb, but that before 1981, he had performed several tooth extractions similar to the one involved in the current action.

Dr. Nelson further testified that, in the year preceding June 18, 1990, the date of Dr. Biggers's alleged malpractice, he was an attorney practicing law in Mountain Brook, Alabama, approximately 80% of his working time, but that he also performed part-time dental consulting work. Dr. Nelson did not own his own dental office in 1989-1990, although he did maintain a consulting office in his home.

The Alabama Medical Liability Act, § 6-5-548, Ala. Code 1975, requires that an expert testifying against a doctor or dentist in a medical malpractice case be a "similarly situated health care provider":

" § 6-5-548. Burden of proof; reasonable care as similarly situated health care provider; no evidence admitted of medical liability insurance.

"(a) In any action for injury or damages or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care the plaintiff shall have the burden of proving by substantial evidence that the health care provider failed to exercise such reasonable care, skill and diligence as other similarly situated health care ...


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