Med-Mal: Exceptions to the Expert Testimony Requirement
Betty Collins v. Herring Chiropractic Center, LLC, et al.: Under the Alabama Medical Liability Act, expert testimony is generally required to prove causation and breach of the standard of care, but there are exceptions to the general rule.
Burned By a Cold Pack
In June 2012, Betty Collins began treating with Ricardo Herring, D.C. for injuries to her knee, shoulder, and lower back. As a part of her treatment, Herring applied a cold pack to Collins’s knee. He treated her on several occasions during June 2012. On her July 9, 2012, Herring’s assistant retrieved a cold pack from the refrigerator and placed it directly on Collins’s knee. On prior occasions, the cold packs had been sitting out on a table before being placed on her knee. Collins noticed on this occasion the cold pack was harder than on the prior occasions. When the assistant removed the cold pack, Collins felt heat in her knee and developed blisters where the pack had been. Scars later formed on Collins’s knee.
On July 7, 2014, Collins sued Herring, individually and as Herring Chiropractic Center, LLC, arising out of the placement of the cold pack to her knee. The defendants filed a motion for summary judgment, which included an affidavit from Herring. Herring testified that all of his treatment of Collins, including placement of the cold pack, was in keeping with the appropriate standard of care, and his actions did not cause any injury to Collins.
Summary Judgment for No Breach of Standard of Care
Herring argued in his summary judgment motion that Collins had not produced any evidence demonstrating a breach of the standard of care, and further that Collins had failed to produce expert testimony as required under the Alabama Medical Liability Act (“AMLA”), codified as Alabama Code (1975) § 6-5-480, et seq. Collins responded contending that an expert was not necessary because her claims could be readily understood by a lay person, an exception to the AMLA. The trial court entered summary judgment in favor of Herring. Collins appealed. Betty Collins v. Herring Chiropractic Center, LLC, et al. [Ms. 1151173 Feb. 17, 2017], — So.3d — (Ala. 2017).
When An Expert Is Required in a Med-Mal Case
Collins argued on appeal that an expert was not required to establish either the standard of care or causal connection between Herring’s actions and her injuries. While ordinarily an expert is required to prove such claims, the Supreme Court of Alabama has carved out an exception, for occasions “where want of skill or lack of care is so apparent … as to be understood by a layman, and requires only common knowledge and experience to understand it.”
When Is Expert Testimony Necessary for Breach of Standard of Care?
Generally, the exception applies to cases (1) in which the lack of skill is so obvious that it can be understand by a layperson and requires only common knowledge and experience to understand, and (2) in which expert testimony is offered by way of authoritative treatise or the plaintiff herself is a medical expert qualified to testify.
In reviewing the facts before it in the present case, the Supreme Court of Alabama found that it was not necessary for Collins to present independent expert testimony for her medical malpractice claims because frostbite is a malady that only requires common knowledge and experience to understand.
When Is Expert Testimony Necessary to Establish Causation?
Collins further argued that she did not require expert testimony to establish causation. The general rule is that a plaintiff must present expert testimony to establish a causal connection between the defendant’s alleged act/omission and the injury the plaintiff suffered. The plaintiff’s burden of proof is to establish that the negligence probably caused, rather than possibly caused the alleged injury.
The evidence in the present case is that the cold pack and its placement were in the exclusive control of the defendants. The defendants did not proffer any evidence that Collins contributed to her injuries. And absent some negligence, blistering and scarring do nit result from the application of a cold pack. As such, Collins is able to establish causation without the use of an expert.
Based on its analysis, the Supreme Court of Alabama reversed the summary judgment entered in the defendants’ favor and remanded the case.
 Tuscaloosa Orthopedic Appliance Co. v. Wyatt, 460 So.2d 156, 161 (Ala. 1984)(quoting Dimoff v. Maitre, 432 So.2d 1225, 1226–27 (Ala. 1983)); see also Anderson v. Alabama Reference Labs., 778 So.2d 806 (Ala. 2000).
 See Ex parte HealthSouth Corp., 851 So.2d 33 (Ala. 2002).
 See e.g., McGathey v. Brookwood Health Servs., Inc., 143 So.3d 95 (Ala. 2013); Ford v. Stringfellow Mem’l Hosp., 39 So.3d 184, 192-93 (Ala.Civ.App. 2009); Walker v. Southeast Alabama Med. Ctr., 545 So.2d 769 (Ala. 1989); Therrell v. Fonde, 495 So. 2d 1046 (Ala. 1986); Lloyd Noland Found., Inc. v. Harris, 322 So.2d 709 (Ala. 1975).
 Pruitt v. Zeiger, 590 So.2d 236, 238 (Ala. 1991).
 See Bradley v. Miller, 878 So.2d 262, 266 (Ala. 2003); University of Alabama Health Servs. Found., P.C. v. Bush, 638 So.2d 794, 802 (Ala. 1994).
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