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.