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Tuck v. Healthcare Authority of the City of Huntsville11/27/2002
ed in this case. Tuck's argument that Buchmann's admission as an expert would not have constituted an "unfair surprise" to the Hospital because Buchmann had been deposed is also unpersuasive. As mentioned above, Buchmann's deposition testimony did not give notice as to what his "expert" opinion would have been in this case.
This Court has stated that it will not reverse a trial court's ruling on a motion for a mistrial "unless it is absolutely clear that its discretion has been abused." Wright v. Terry, 646 So. 2d 11, 14 (Ala. 1994). The same circumstances that justified the trial court's exercise of discretion in not allowing Buchmann to testify also justify the exercise of the trial court's discretion in denying Tuck's motion for a mistrial. Tuck's final argument is that the trial court erred in granting the Hospital's motion for a JML. Tuck contends that the Hospital's expert testimony, provided by Cowan and Mizelle, was sufficient to establish the standard of care. Tuck points to Tant v. Women's Clinic, 382 So. 2d 1120 (Ala. 1980), where this Court recognized that a plaintiff's burden of proving the standard of care in a medical-malpractice case can be met by expert testimony of the health-care provider or its employees. Id. Tuck asserts that there is substantial evidence, when viewed in the light most favorable to his position, of the standard of care and of a breach of the standard of care and indicating that the breach was the proximate cause of Virginia Tuck's injuries. Consequently, Tuck argues that the evidence should have been presented to the jury and asks us to reverse the JML.
Tuck's argument that the expert testimony of Cowan and Mizelle was sufficient to meet his burden of proof is misplaced. Cowan and Mizelle both testified that the belt restraint was the proper type of restraint to be used on Virginia Tuck, and that they adhered to the required standard of care in all aspects of their treatment of Virginia Tuck. Tuck argues that "neither nurse appeared to be able to articulate exactly what the standard of care is for this situation during [his or her] deposition statement" and that the nurses' "assertions [that they followed the standard of care] should be weighed against the facts they testified about." Tuck cannot claim, on the one hand, that Cowan's and Mizelle's testimony established the standard of care, and, on the other, say that they did not clearly articulate the applicable standard of care. We cannot embrace Tuck's contention that the testimony of the nurses establishes the standard of care when those same witnesses testified that they did not breach the standard of care.
Tuck also argues that even without expert testimony establishing the standard of care, the trial court erred in granting the Hospital's motion for a JML. Tuck points to this Court's decision in Walker v. Southeast Alabama Medical Center, 545 So. 2d 769 (Ala. 1989). In Walker, this Court stated that expert testimony is not required where "the want of skill or lack of care is so apparent as to be understood by a layman, and only common knowledge and experience are required to understand it." 545 So. 2d at 771. Tuck also refers to Heath v. HealthSouth Medical Center, [Ms. 2000807, May 3, 2002] ___ So. 2d ___ (Ala. Civ. App. 2002), where the Court of Civil Appeals held that expert testimony was not needed to determine the standard of care required when a nurse failed to respond to a patient's routine call for assistance. The Court of Civil Appeals stated that under the circumstances of the case, a layperson could determine the standard of care by using his or her own "common knowledge" and "experience." ___ So. 2d at ___. Tuck contends that it was reasonably foreseeable that his mother, in her c
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