143 So. 3d 95
Ala.2013Background
- McGathey underwent outpatient left-shoulder arthroscopy at Brookwood Medical Center; a metal bar (part of a Spider Limb Positioner) sterilized in an autoclave was used to immobilize her arm.
- ORT Paul Nunnally (Brookwood employee) testified the metal bar was "very hot" when he moved it and that he could have cooled it but did not; he warned PA Jennifer Rawlings (employed by Alabama Spine and Joint) that it was hot.
- Rawlings placed the bar in a foam sleeve, attached it to McGathey’s hand/arm, and surgery proceeded; postoperatively McGathey awoke with a blister on her left little finger consistent with a burn.
- McGathey sued Brookwood, Dr. Appell (surgeon), and fictitious defendants under the Alabama Medical Liability Act (AMLA); she later sought to substitute Nunnally and Rawlings after depositions.
- Trial court granted summary judgment for Brookwood and Dr. Appell for lack of expert proof under the AMLA and denied leave to amend to substitute real parties; McGathey appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether expert testimony was required to show breach of standard of care for hospital (Brookwood) | McGathey: no expert needed because a hot metal object burning skin is within lay understanding; depositions (esp. Nunnally) create genuine issue | Brookwood: expert required to establish negligence under AMLA; deposition excerpts insufficient | Reversed as to Brookwood — lay evidence (Nunnally’s testimony) created genuine issue; expert not required here |
| Whether expert testimony was required for claims against Dr. Appell (surgeon) | McGathey: Dr. Appell liable (vicariously or for safety plan) | Dr. Appell: he was not present when bar was attached; Rawlings was employed by another entity; no expert on physician-level duties | Affirmed for Dr. Appell — no vicarious liability (no master-servant relationship) and plaintiff lacked expert proof on physician-level care plan |
| Whether assault and battery claims could proceed under AMLA | McGathey: assault/battery available under AMLA in addition to malpractice | Defendants: summary judgment proper because no evidence she lacked informed consent | Affirmed — assault/battery dismissed because plaintiff signed informed-consent form and offered no evidence to the contrary |
| Whether substitution of real parties (Nunnally, Rawlings) related back under Rule 9(h)/15(c) to avoid SOL | McGathey: she did not know their roles until depositions and promptly moved to amend | Defendants: medical records and interrogatory answers showed their identities early; plaintiff failed to exercise due diligence | Affirmed — relation-back denied because plaintiff knew identities from records yet did not diligently investigate or amend within a reasonable time |
Key Cases Cited
- Ex parte Health-South Corp., 851 So.2d 33 (Ala. 2002) (discusses narrow exception where expert testimony is unnecessary because breach is obvious to laypersons)
- Ford v. Stringfellow Mem'l Hosp., 39 So.3d 184 (Ala. Civ. App. 2009) (similar facts: burns from heated surgical device; held expert testimony unnecessary)
- Lloyd Noland Found., Inc. v. Harris, 322 So.2d 709 (Ala. 1975) (laypersons need not prove that a hot object will burn human skin)
- Ware v. Timmons, 954 So.2d 545 (Ala. 2006) (respondeat superior requires evidence of master-servant control, including hiring/firing power)
- Ex parte Hensel Phelps Constr. Co., 7 So.3d 999 (Ala. 2008) (Rule 9(h)/15(c) fictitious-party relation-back requirements and diligence standard)
- Weber v. Freeman, 3 So.3d 825 (Ala. 2008) (further examples clarifying that knowledge of a person's identity in records triggers duty to investigate before statute runs)