 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Tuck v. Healthcare Authority of the City of Huntsville11/27/2002
e trial court erred in not granting a mistrial and giving him the opportunity to obtain another expert witness to present at re-trial.
We are not persuaded by these arguments that the trial court erred in disqualifying Tuck's expert witness and in not granting a mistrial. For Cantrell to have been qualified as an expert in this case, she needed to be a health-care provider "similarly situated" to Cowan and Mizelle. See Husby v. South Alabama Nursing Home, Inc., 712 So. 2d at 753 (stating that when the defendant is not an individual but rather is an entity like the Hospital, "the focus should be on the individual practitioner whose specific action is alleged to have fallen below the standard of care."). Cantrell testified that she had not worked as a staff nurse in a hospital since 1978 and that she had last worked as a nurse in 1992. Cantrell's role at Georgia State University School of Nursing was administrative; she has not taught nursing courses in a clinical setting since 1978; and she has never used the type of belt restraint that was used on Virginia Tuck. Cantrell testified that she had never written about patient restraints, that she was not an expert on restraints, and that she did not consider herself similarly situated to Cowan and Mizelle in the year preceding Virginia Tuck's injury . In view of all of the above, it is clear that the trial court properly determined that Cantrell was not a health-care provider similarly situated to Cowan and Mizelle and that she was not qualified to testify as to the standard of care in this case. Tuck's assertion that Cantrell is qualified to testify despite her failure to meet the requirements of ยง 6-5-548 is also unpersuasive. This Court has, in two circumstances, deviated from the requirement that an expert in a medical-malpractice case must have practiced in the same discipline as the individual accused of negligence in the year preceding the alleged negligence. They are: (1) where the expert was highly trained and experienced in the area of practice and (2) where the expert's work in the year preceding the alleged negligence demonstrated the expert's competence to testify as to the standard of care. See HealthTrust, Inc. v. Cantrell, 689 So. 2d 822, 827 (Ala. 1997) (holding that despite the fact that the expert had not worked as an operating-room technician in the previous year, the expert could testify as to the applicable standard of care because he was "highly qualified" and had worked the previous year as the director of medical services for a major hospital); Dowdy, 612 So. 2d at 1151-52. Despite Tuck's claims to the contrary, Cantrell is not "highly qualified" and experienced in the area of physical restraints. Cantrell testified that she had not received training in patient restraints or taught the use of restraints since the 1970's, that the standard of care had changed since she received her training in the use of patient restraints, and that she had never used the belt restraint used on Virginia Tuck. Cantrell did not perform work in 1998 that qualified her to testify as to the standard of care used by nurses in selecting, applying, and maintaining restraints on patients. Cantrell does not come within the exceptions recognized in HealthTrust and Dowdy.
Nor is the fact that the trial court denied the Hospital's motion to strike Cantrell's affidavit a sufficient justification for finding that the trial court erred in disqualifying Cantrell from testifying as an expert. Tuck cites no caselaw to support his claim that Cantrell's disqualification prejudiced him and that he was without notice that she would be disqualified because the motion to strike her affidavit had been denied. The Hospital's arguments in the motion to strike placed Tuck on not
Page 1 2 3 4 5 6 7 8 Alabama Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|