At least one county in Alabama has low level of tolerance

A Walker County jury returned a verdict of $3 million against a physician who was alleged to have engaged in a sexual relationship with the Plaintiff and prescribed him pain medication that ultimately led to a long battle with addiction. The Plaintiff’s lawyer, Garve Ivey, Jr. believes the verdict indicates that area citizens are tired of the negative impacts of recklessly prescribed drugs, especially when those prescriptions result in addiction. Ivey noted that his filing of more than a dozen cases against local doctors was not an indictment on the medical community at large and that only a handful of doctors in Walker County are guilty of such charges.

Medical Malpractice – You Must Disclose Experts!

In Cobb v. Fisher, No. 1071501 (Ala. April 3, 2009), the Alabama Supreme Court affirmed the trial court’s grant of summary judgment to Fisher, a doctor who performed bilateral knee surgery on Cobb, where Cobb failed to disclose her expert’s identity during discovery. 

After the surgery, Cobb experienced pain in her left knee and difficulty walking.  During a second surgery four months later, bone fragments and cement were found and removed.  Cobb sued Dr. Fisher and Russellville Hospital  making claims of medical malpractice, breach of fiduciary duty, and the tort of outrage based on res ipsa loquitor and respondeat superior.  However, Cobb never disclosed the identity of an expert as required by the Alabama Medical Liability Act (“AMLA”).  Both parties filed for summary judgment, and Cobb attached an expert’s affidavit with her motion wherein the expert opined that Fisher and the hospital staff deviated from the applicable standards of care.  Cobb additionally argued that her claims fell within an exception to the AMLA and that expert testimony to support her medical malpractice claim was not required because of the foreign instrumentality found in her knee.  Fisher and the hospital moved the court to strike the expert’s affidavit because the identity of said expert was not previously disclosed as required.  The trial court granted both of Fisher’s and the hospital’s motions. 

The Supreme Court agreed with the trial court.  First, Cobb’s claim did not fall within the AMLA’s exception to the general rule requiring expert testimony because the cement found in her knee was not like an instrument that should have been removed.  Rather, the placement of cement in her knee required expert testimony.  Second, the trial court had authority to impose sanctions for Cobb’s failure to disclose her expert within the timelines established by the scheduling order and even though striking her expert’s testimony nullified Cobb’s claims,  such sanction was appropriate under the circumstances. 

Read the full case here. 

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