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Tuck v. Healthcare Authority of the City of Huntsville11/27/2002
ualify Cantrell as an expert witness and had refused to allow Buchmann to testify as an expert witness. Tuck contends that Cantrell's disqualification was unjust and prejudicial. Tuck points to the trial court's denial of the Hospital's motion for a summary judgment and of its motion to strike Cantrell's affidavit as the basis for what he says was "manifest prejudice" against Tuck created by Cantrell's subsequent disqualification. In response to the Hospital's summary-judgment motion, Tuck submitted Cantrell's affidavit and curriculum vitae. The curriculum vitae showed that Cantrell has a bachelor of science degree in nursing, a master of science degree in medical-surgical nursing, and a doctor of philosophy degree in medical sociology, social psychology theory development, and psychology. The curriculum vitae also stated, among other things, that she was a professor of sociology and nursing at Georgia State University. The Hospital moved to strike Cantrell's affidavit on the grounds that she was not a similarly situated health-care provider under § 6-5-548. Section 6-5-548(b) defines "similarly situated health-care provider" as a person who:
"(1) Is licensed by the appropriate regulatory board or agency of this or some other state.
"(2) Is trained and experienced in the same discipline or school of practice.
"(3) Has practiced in the same discipline or school of practice during the year preceding the date that the alleged breach of the standard of care occurred."
The trial court denied the Hospital's motion to strike. When Cantrell testified at trial, she testified that she was not similarly situated to Cowan and Mizelle and that she had not been a staff nurse at a hospital in the year preceding Virginia Tuck's accident in December 1999. The Hospital moved to disqualify Cantrell under § 6-5-548(b), and the trial court granted the motion. Tuck argues that Cantrell should have been deemed qualified to testify as an expert. Tuck points to Rodgers v. Adams, supra, which states:
"The [AMLA] does not require that the defendant health care provider and the expert witness have identical training, experience, or types of practice, or even the same specialties. To be 'similarly situated,' an expert witness must be able to testify about the standard of care alleged to have been breached in the procedure that is involved in the case." 657 So. 2d at 842.
Tuck also refers to Dowdy v. Lewis, 612 So. 2d 1149 (Ala. 1992), in which this Court held that the trial court had not erred in admitting the testimony of two nursing-care experts despite the fact that they had not practiced nursing in the year preceding the claim at issue in that case. 612 So. 2d at 1152. This Court stated that the nurses were capable of testifying as to the standard of care, because they were both highly qualified individuals who taught nursing and held advanced degrees. Id. Tuck submits that Cantrell's training, education, and work experience qualify her as an expert and that if Cantrell is not "similarly situated" with Cowan and Mizelle, it is because Cantrell is more qualified than the Hospital's nurses.
Tuck also contends that because the trial court denied the Hospital's motion to strike Cantrell's affidavit, Tuck assumed that Cantrell's testimony would be allowed into evidence at trial. The trial court's subsequent disqualification of Cantrell caused him, he says, to suffer "manifest prejudice," because the trial court did not give any notice that Cantrell would not be qualified to testify at trial. Tuck asserts that the circumstances of Cantrell's disqualification created a "manifest necessity" for a mistrial as provided in § 12-16-233, Ala. Code 1975, and that th
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