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Since the retirement of Chief Justice Sue Bell Cobb, Alabama’s Supreme Court has become one of the most conservative in the nation. Conservatism goes hand-in-hand with the defense Bar, which is predominantly counsel for insurance companies and businesses. Conservative legalists have held sway over the legal landscape in this state for a decade, which is a shift in ideology caused by a backlash to the dominance of the plaintiff’s Bar in the 1990′s, and tracks the national trend that some call "the vanishing plaintiff". The effect on medical malpractice cases of this change is profound, and unfortunately, it is most evident in its effect on the ability of a plaintiff to recover for injuries inflicted by a medical provider: that right is swiftly evaporating.

Consequently, it is notable that the Alabama Law Weekly reported recently that the Alabama Supreme Court in Hill v. Fairfield Nursing and Rehab. Center, LLC reversed a trial court’s decision that the plaintiff’s nursing expert was not similar enough to the nurse who caused the injury at issue to be qualified as an expert under the Alabama Medical Liability Act (AMLA). AMLA governs medical malpractice actions, and requires expert testimony in support of a plaintiff’s claims. Supreme Court caselaw interpreting AMLA has very narrowly constructed the statute’s requirement that medical experts specialize in the specific area at issue in the suit, and have practiced in that area during the year prior to the suit. Without this close similarity between the expert and the area of medical specialty at issue, the plaintiff cannot prove a breach of the standard of care occurred under AMLA.

The decision in Hill may indicate a decline in momentum on the Court toward a de facto abolition of medical malpractice suits. Where cases handed down by the Court typically hold the plaintiff’s expert was not similarly situated, regardless of how similar the expert and defendant’s practice areas were, Hill deviates from that trend. Here’s the Alabama Law Weekly’s interpretation of the holding:

Alabama Law Weekly, Vol. 21, No. 43, p. 2

So, despite the control or oversight provided by a specialty not within the medical expert’s training or experience, the Court held the expert met the AMLA requirements and could be relied on to show a breach of care by the defendant nursing home.

Unfortunately, decisions like this, which refuse to further limit the ability of an injured party to prove his case, are contrary to the general conservative mentality of the Court. Alone, they are not enough to revive jurisprudence originally intended to protect patients from harm caused by their medical providers.


  1. Gravatar for jc

    Dottie much needs to be done regarding medical "expert" testimony. This is the key reason that plaintiffs lose medical malpractice trial verdicts 80-85% of the time. I personally feel that we would all be better off if we got rid of the current medical malpractice jury system and went to a board staffed with doctors and medical professionals to adjudicate these claims. It would take far less time and get rid of the blood sucking plaintiff attorneys.

  2. That's an interesting post, Dr. Cox. Why do you think that expert testimony is the problem? Have you served as an expert in a trial? Why the anger towards plaintiff's lawyers? I respect your right to say whatever you feel moved to say, but I would sure like to hear your rationale.

  3. Gravatar for jc

    Here is the problem with medical expert testimony. There is no accountability! A fraudulent medical expert can get on the witness stand and say anything, collect his fee and he is gone. There is never any action against fraudulent medical testimony. The judge just throws up his hands and says, "I am not a doctor, the plaintiff can present the testimony." Now often only the discredited "expert" presents this testimony, many times the defense has hundreds of experts to contradict the testimony, but the judge says, the plantiff gets one expert witness and the defense gets one expert witness. So the jury is sitting there listening to these two witnesses and one of them is a fraud and how are they to know? This is bad for the legal system including the defense and the plaintiff. Frequently (80-85% of the time!) fraudulent testimony is exposed at trial and the plaintiff loses. It doesn't help the plaintiff who may have sunk $100K into the case to lose the case based on faulty expert testimony. The defense "wins" but has spent years fighting the case and spent $100K. So I say, take it out of the court system and let an arbitration pannel of doctors handle malpractice issues. The cases would take months instead of years with more money for the patient, less aggreivation for the doctors and less time and money spent on lawyers.

  4. Dr. Cox you are correct that the doctor or hospital wins the overwhelming percentage of medical malpractice cases. But your reason is wrong. Judges do not limit either side to only one expert and “fraudulent” experts are a rarity because they are so readily exposed through cross examination. The real reason victims have such poor outcomes in court is because- regardless of how bad the medical care the patient received - local doctors will not testify in behalf of their patient if it means criticizing another local doctor. The pressure applied by medical malpractice insurers and the stigma of having sided against a fellow doctor combine to silence the local doctors and require patients to hire experts from out of state. The defense will then discredit the patient’s case by arguing “There are plenty of fine doctors right here in [insert name of city or state] but not one of them told you that good doctor [insert name of defendant] did anything other than his dead level best.”

    I invite anyone who reads this post to test my hypothesis by asking your doctor friends if they ever testified that another local doctor breached the standard of care. If they say they have not, ask them if they know a local doctor who has. Dr. Cox, you claim to have experience with the legal system, so please tell us how many times you have testified that a doctor committed malpractice.

    Replacing juries with medical boards would leave the injured patient at the mercy of the medical system that failed her in the first place and, according to Dr. Cox, is crowded with fraudulent doctors who will testify to anything. If you get run over by a drunk driver should your case be decided by a panel composed of drunk drivers? The solution is not to eliminate juries in malpractice cases. The solution is for the medical community to encourage its members to testify truthfully when ask regardless of who it hurts.

  5. Gravatar for jc

    The reason most local doctors will not testify in a medical malpractice case is that most medical malpractice cases are fraudulent. Take some of the cases that I have recently seen go thru the legal system. A colleague of mine got sued for a typographical mistake for which he had no responsibility for. Another colleague of mine was threatened with litigation after correctly diagnosing bowel obstruction later corrected with surgery. Another doctor was sued for correctly doing a vasectomy on the wrong man (His wife got pregnant!) I got named in a suit because my name was on the chart. The reason I do not testify is that I am so disgusted with incompetent plaintiff attorneys that I want nothing to do with a fraudulent legal system. We have Worker's Comp and it works well. Why can't we apply the same principals to medical malpractice? New Zealand does. We want socialized medicine in the USA, well this is one of the costs of socialized medicine.

  6. Gravatar for Goose

    John Cox is a well-know comment troll around these parts. I'm surprised The Legal Examiner still allows him to comment. Soon he will be calling you guys "Petey" and Dottie "Darling" in an attempt to get under your skin. Don't bite.

  7. Gravatar for Dottie Perry

    Dr. Cox:

    Thank you for sharing your perspective. Your posts, however, appear to either call for a limitation on a person’s access to the judicial system (namely, plaintiffs'), or believe one already exists (namely, defendants'). Yet, they both have an equal right to protect themselves in a court of law, and regularly successfully exercise that right.

    In 1996, the United States Supreme Court said, “Central to the idea of the rule of law, and to our own Constitution’s guarantee of equal protection, is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance.”

    In 1803, that Court said, “The very essence of civil liberty certainly consists in the right of every individual to claim protection of the laws, whenever he receives an injury….The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.”

    It is these ideas that underlie my blog post that precipitated your comments, above. Do you agree with the message in these quotes?

    If you'd like to read more about this Constitutional tenet and fundamental right, here is a link to a short essay that delves into the history of access to the judicial system, entitled "The Jurisprudence of Access to Justice: From Magna Carta to Romer v. Evans via Marbury v. Madison":

  8. Gravatar for jc

    Dottie, I fundamentally disagree with your positions. Congress regularly limits litigation to provide for the common good. An example of this is Worker Compensation. It would not be good for one injured worker to be allowed to sue Ford into bankruptsy thereby depriving 350,000 people of their livilihoods and destroying the company. We have Workers Comp to prevent that. If my electric goes out, I cannot sue the electric company for a freezor full of spoiled meet, I have to go to the public utilities commission. Well, we now have socialized medicine and in order to have affordable medical care available to all we must decrease costs. One cost driver is frivolous litigation. Lets face it, when 85% of cases are won by the defendant doc, at trial, lots of frivolous cases are being filed. So, why not have a pannel decide whether malpractice has occurred or not? Instead of spending a decade litigating an issue, cases could be resolved in months compensating injured patients and getting innocent doctors off the hook. The medical legal justice system is just not equipped to handle these cases and we gotta change with the times.

  9. Gravatar for jc

    Pete Burns: I would like to answer your assertion that plaintiff's lose because local doctors will not testify against fellow colleagues. I disagree with you assertion. The real problem lies with the lawyers who bring these cases. Medical malpractice litigation is the second hardest litigation to bring in the USA. This is due to the complex legal, medical, ethical and patient compliance issues intertwined with the poor result. Yet any lawyer who passes the state bar can sue a doctor the minute he receives his license to practice law. Immagine the results if we let a doctor who just finished his internship and gotten his license, do complex brain surgery the next day! Well, that senerio cannot happen because no hospital in the USA would allow any doctor without credentials or training to do that or any kind of surgery. Yet the American Bar Association has no qualms about allowing poorly trained plaintiff attorneys to file malpractice litigation. No wonder they lose 85% of the time!

    Because the poor patients are being so poorly served by the legal profession, I believe that a medical malpractice pannel should be formed in each state to hear these case and fairly compensate patients. Lets get rid of the adversarial system and the plaintiff attorneys!

  10. Gravatar for jc

    Goose- -my purpose is not to get under anyone's skin. I am just arguing the "other side" of the medical legal debate. As a physician, I have delt with patients, and the medical legal system. The legal incompetence that I have witnessed is truely amazing. So when lawyers start talking about incompetent doctors, I give them examples of incompetent lawyers and the lawyers (like goose) can't take it.

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