United States District Court, M.D. Alabama, Northern Division
JOHN W. WASHINGTON as next Friend of MAE R. WASHINGTON, Plaintiff,
BIO-MEDICAL APPLICATIONS OF ALABAMA, INC., a foreign corporation, Defendant.
REPORT AND RECOMMENDATION OF THE MAGISTRATE
F. MOORER UNITED STATES MAGISTRATE JUDGE.
brings this action against Defendant Bio-Medical Applications
of Alabama, Inc. d/b/a Fresenius Kidney Care
(“Bio-Med”) alleging damages for injuries she
received when she fell from her wheelchair after receiving
dialysis treatment at Bio-Med. This matter is pending before
the Court on Plaintiff's Second Motion in Limine (Doc.
53) which asks the Court to issue a ruling that Plaintiff is
not required to present expert testimony regarding the
applicable standard of care. Defendant filed its Response
wherein it argues that expert testimony is required in this
case. (Doc. 59). For the reasons stated below, the Court
concludes that Plaintiff's Second Motion in Limine (Doc.
53) should be denied as the Alabama Medical Liability Act
(“AMLA”) requires expert testimony on the
standard of care in this action unless an exception applies.
general rule under AMLA is that expert testimony is necessary
to establish the standard of care required. See,
Ala. Code § 6-5-548(a); Sorrell v. King, 946
So.2d 854, 861 (Ala. 2006). Plaintiff argues that this case
falls within the two exceptions to the general rule
concerning expert testimony. First Plaintiff argues that the
act or omission in this case falls within a class of cases
“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.” Ex
parte HealthSouth Corp, 851 So.2d 33, 42 (Ala. 2002) (No
expert needed with respect to allegation that hospital
breached its duty when nursing staff failed to respond to her
calls for assistance in walking to the bathroom). The
HealthSouth Court offered specific examples which
fall into this exception “such as when a sponge is left
in, where, for example, the wrong leg is operated on, or as
here, where a call for assistance is completely ignored for
an unreasonable period of time.” Id. at 39.
argues that HealthSouth, can be read to hold that
“[t]he standard of nonmedical administrative,
ministerial or routine care in a hospital need not be
established by expert testimony because the jury is competent
from its own experience to determine and apply such a
reasonable-care standard.” Id. (citing
McGraw v. St. Joseph's Hospital, 488 S.E.2d 389
(1997)) (emphasis added). While the HealthSouth
Court does cite to this proposition from the West Virginia
case, it did not include this language in its express
holding. Rather, the HealthSouth Court chose
language requiring “common knowledge and
experience” to take certain factual scenarios out of
the general rule requiring an expert under AMLA. Moreover,
the court listed specific examples falling within this
general language. None of these examples include the facts
presented in the case at bar.
further points to two Alabama cases which he argues are
factually analogous to the instant action - Walker v. Se.
Ala. Med. Ctr, 545 So.2d 769, 771 (Ala. 1989) (No expert
testimony necessary where Plaintiff fell from bed after
doctor issued order, which was not followed, requiring bed
rails be raised) and Dallas by & Through Dallas v.
Russell, 727 So.2d 110, 112 (Ala. Civ. App. 1998) (No
expert testimony needed where child fell from chair after
having teeth cleaned where defendant dentist and dental
hygienist testified to standard of care and admitted its
breach.) However, the facts are distinguishable as opposed to
analogous between these cases and the instant lawsuit.
in Dallas there was testimony by the defendant
dentist and hygienist as to standard of care and admissions
as to its breach. In the instant action, there is limited
standard of care testimony and no admissions to its breach.
Further, there is disagreement between the parties on the
standard of care applicable in this case. In fact, in
response to a question by Plaintiff's counsel at
deposition, Ms. Gaston, Defendant's employee who was
supervising Plaintiff when the fall occurred, said she did
not agree she needed to be close enough to a person to
prevent their fall in order to “watchfully
supervise” them. See Doc. 53-1 at p. 270-71.
in Walker, in contrast to the instant action, there
was a doctor's order to raise the bed rails which the
Court recognized set the standard of care. Since there was no
doctor's order on how to “watchfully
supervise” Ms. Washington in the instant action, the
Court concludes this action is more analogous to Leonard
v. Providence Hospital, 590 So.2d 906 (Ala. 1991). In
Leonard, the Court held that in an AMLA action
brought for injuries sustained by Plaintiff who fell out of a
hospital bed, expert medical testimony was needed to
establish the standard of nursing care in the absence of a
medical order requiring a certain type of treatment or
precaution. Id. at 908. Accordingly, the Court
concludes analogous case law supports the conclusion that
expert testimony is necessary under the AMLA to establish the
proper standard of care in this action.
Plaintiff argues that because the standard of care has been
admitted by the testimony of the defendant, expert witness
testimony is unnecessary. The parties' arguments made in
their briefs on the Second Motion in Limine (Docs. 53, 59)
make clear there is some agreement that Defendant owed
Plaintiff a duty of “watchful supervision.”
However, as the above testimony of Gaston demonstrates, there
is disagreement about what “watchful supervision”
means. The specific testimony is as follows:
Q. Do you agree that you have to be close enough to someone
to prevent their fall in order to watchfully supervise them?
. . . A: No. sir.
Q: You don't agree with that?
A: No, sir. I don't agree.
Doc. 53-1 at pp. 270-71. Thus, the Court concludes there has
been no testimony by Defendant as to what it means to
“watchfully supervise” Plaintiff, nor has there
been any admission of such a failure. Accordingly, the Court
concludes that Plaintiff's second argument for exception
fails and that expert testimony is required in this case to
establish the standard of care due and whether it was
above stated reasons, it is the RECOMMENDATION of the
Magistrate Judge that Plaintiff's Second Motion in Limine
(Doc. 53) be denied on the basis that the Alabama Medical
Liability Act (“AMLA”) requires expert testimony
in this action on the ...