What is the status of Medical Malpractice cases in Alabama?

From 1980-1986 medical malpractice cases soared

over 25% from the prior years. Not only did the cases

increase, but the payouts doubled and I noted many law

firms were a part of that, I recall rumors of one

Alabama lawyer having difficulty in getting medical

care because of their involvement as a plaintiff’s

attorney. The Alabama legislature met and revamped

the medical malpractice laws in 1987. Prior to 1987

some insurance companies incurred grave losses, so

much that some companies no longer insured health care providers. Physicians

saw their malpractice premiums rise significantly. I recall talking to an OB-Gyn

physician during that time and he was telling me how he was having to raise

the cost of his service one hundred dollars for every OB patient. Maybe not so

significant now, but it was some forty years ago and especially to those near

poverty and maybe having higher risk pregnancies.

After the revamping of the malpractice laws and over time the State of Alabama

has become more friendly to providers and less friendly to plaintiffs. The

number of law firms that still take on medical malpractice cases has decreased.

Past discussions I have had with medical malpractice plaintiff attorneys have

shown that they are very discerning when deciding to take such a case. I read

one report that said plaintiff attorneys in Alabama are only successful about one

in ten medical malpractice cases, and that is after they may have invested tens

of thousands of dollars in building and trying the case.

An interesting case was brought before the Alabama Supreme Court, Mobile

Infirmary Association d/b/a Mobile Infirmary Medical Center and Gulf Health

Hospitals, Inc., d/b/a Thomas Hospital v.Wayne Fagerstrom, individually and

as administrator of the Estate of Sylvia Fagerstrom, deceased, only decided

recently but arose in 2018. The case had come from the Baldwin County Circuit

Court after a jury trial found in favor of the plaintiff. Sylvia Fegerstrom, of

Baldwin County, AL was 85 years of age when a brain tumor was discovered.

The tumor was removed but her recovery did not go as expected and she died.

Her case was brought by the Personal Representative of her estate and her death

as argued by the plaintiffs was due to sepsis brought on by an infected pressure

ulcer due to the hospital not meeting the standard of care. During the intervening

time between her surgery and death she experienced high blood pressure,

lethargy, difficulty speaking, malnourishment, a blood clot, swelling in her

lower extremities, nausea, UTI resistant to antibiotics and toxic metabolic

encephalopathy. It was asserted that she was not turned enough at the hospital

thus getting the pressure sore which ulcerated. She was sent to a nursing home

where the ulcer improved and then to another hospital where the sore only got

worse. She was sent to a second nursing home where the sore then became

infected then back to hospital number two. She was again transferred to nursing

home number two where she eventually died three and one half months after

her surgery.

The plaintiff’s expert witness testified that the infected ulcer led to infected

bone which caused the sepsis resulting in her death. The defendants asserted

that the plaintiff’s expert did not meet the necessary proof in quoting Section

6-5-549, Ala. Code 1975, provides, in part: "In any action for injury or

damages or wrongful death, whether in contract or in tort, against a health

care provider based on a breach of the standard of care, the minimum standard of

proof required to test the sufficiency of the evidence to support any issue of fact shall

be proof by substantial evidence.” The opinion stated "[S]ubstantial evidence is evidence of such weight and quality

that fair-minded persons in the exercise of impartial judgment can reasonably

infer the existence of the fact sought to be proved." West v. Founders Life

Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989).

The defense argued that the experts testimony as to sepsis was speculative and

to prove such, there was need of objective testing which should include,

“measurements of Sylvia's pulse, respiration, blood pressure, and body

temperature”. The defense said that one may have sepsis prior to death but not

actually die from that. An infectious disease physician that had treated Sylvia

noted her death was a result of “renal failure with contributions from deep-vein

thrombosis, coronary artery disease, valvular heart disease, and malnutrition.

There is no mention on the death certificate of Sylvia's ulcer or sepsis, . . . .”.

All in all, The Alabama Supreme Court did not feel that the plaintiff supported

the necessary proof and the case was remanded back to the trial court for

reconsideration based on the Supreme Court’s instructions.

In my research there are cases noted which support Alabama as a more friendly

state to medical providers. Two that I looked at which hinged on the health facts

and not the legal case seemed to me to have plain evidence of failure of a

provider or even a blatant and willful malpractice. I do not know the reasons

why the cases were not held for the plaintiffs, whether it was ineffective counsel

or simply failure to prove damages. Medical malpractice cases do succeed at

times in Alabama, but the courts are truly looking to see if the burden of proof

is supported and whether the injured patient is really worse off than before the

alleged matter occurred.

This article is informative only and not meant to be all inclusive. Additionally this article

does not serve as legal advice to the reader and does not constitute an attorney- client

relationship. The reader should seek counsel from their attorney should any questions

exist.

"No representation is made that the quality of legal services performed is greater than

the quality of legal services performed by other lawyers.