Craig v. Borcicky

Citations: 557 So. 2d 1253; 1990 WL 12855Docket: 88-475

Court: Supreme Court of Alabama; January 25, 1990; Alabama; State Supreme Court

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Bernice Burnett Craig appealed a summary judgment favoring Dr. David Borcicky in a malpractice case. Craig first consulted Borcicky for foot issues on September 13, 1985, receiving treatment for an ingrown toenail and a callus over 11 months, culminating in surgery on August 14, 1986. Following the surgery, Craig experienced complications, including swelling, pain, and an infection that required hospitalization. She alleged that Borcicky's negligent surgery led to her inability to walk and loss of employment, filing her lawsuit on August 14, 1987, claiming negligence and lack of informed consent.

After Borcicky's initial summary judgment was granted on July 1, 1988, Craig sought to overturn it, submitting an affidavit from orthopedic surgeon Dr. Zarzour, who indicated willingness to testify. However, the court ruled Dr. Zarzour was not qualified as an expert. On September 19, 1988, Borcicky renewed his motion for summary judgment, which was again granted on November 30, 1988, despite Craig submitting Dr. Zarzour's deposition.

On appeal, Craig raised two issues: the trial court's refusal to accept Dr. Zarzour's deposition as expert testimony and the assertion that her informed consent claim presented a factual question for a jury. The court noted that the qualification of expert witnesses is subject to trial court discretion and cited precedent indicating that a physician from one medical field cannot testify against a physician from another. Craig argued that Dr. Zarzour's orthopedic background qualified him to assess foot-related medical issues, contending that podiatrists should be judged by a negligence standard rather than the Medical Liability Act's standards due to their different legal treatment. The court emphasized the necessity of expert testimony to establish Borcicky's negligence.

In Tuscaloosa Orthopedic Appliance Co. v. Wyatt, the court emphasized that determining whether a podiatrist's actions meet the standard of care relies on whether an average person can discern negligence without expert input. The 'reasonable person' standard is contextual, taking into account the specific circumstances of the case. A patient expects a podiatrist to demonstrate the ordinary skill and care characteristic of a qualified professional in that field. Podiatry is recognized as a specialized profession, regulated by specific statutes, and unlicensed practice constitutes a misdemeanor. Therefore, negligence assessments must be based on a 'reasonable podiatrist' standard rather than a general medical standard. 

Expert testimony regarding a podiatrist's adherence to professional standards must typically come from practitioners within the same field. The court referenced prior cases, including Wozny v. Godsil, which established that a witness outside a specific medical school may testify if knowledgeable about that school’s practices, especially regarding shared diagnostic principles. The document cites a South Carolina case where the court ruled that an orthopedic surgeon could not testify on podiatric standards due to lack of relevant training and familiarity with podiatric practices. Moreover, it was noted that a podiatrist's standard of care is not equivalent to that of a physician or surgeon, reflecting less stringent educational requirements. Conversely, a Georgia court permitted an orthopedic surgeon to testify on podiatric standards, indicating variability in judicial interpretations of expert testimony admissibility across jurisdictions.

The court ruled that the orthopedic surgeon's familiarity with the treatment procedure used by the defendant did not disqualify his testimony, even though differing medical specialties could influence the weight of that testimony. Prior case law established that testimony from a podiatrist could overlap with that of an orthopedic surgeon in malpractice cases due to similarities in surgical methods. However, in this case, Dr. Zarzour lacked any knowledge or training in podiatry, as evidenced by his deposition where he admitted to not attending podiatry school, seminars, or having familiarity with podiatric standards or practices. Consequently, the trial court properly disallowed his testimony, as he did not meet the necessary qualifications to comment on podiatric care.

Additionally, plaintiff Craig argued that she was not adequately informed about the surgical procedures performed and that Dr. Borcicky disregarded her instructions regarding what procedures she consented to. She acknowledged signing a consent form but claimed that the specific details of the procedures were not included at the time of her signature. Her affidavit indicated that her initial consultation with Dr. Borcicky was for an ingrown toenail and a callus, and that he performed procedures on these conditions.

In January 1986, the patient revisited Dr. Borcicky for recurring issues with an ingrown toenail and callus. The doctor indicated that surgical removal was necessary to prevent regrowth. On August 4, 1986, the patient returned due to the recurrence of the problem and a new bump on her right little toe. Dr. Borcicky suggested multiple surgical procedures, including correcting the toe alignment, which the patient decided to discuss with her husband and friends. They advised her to limit the surgery to only the removal of the ingrown toenail, callus, and bump.

The patient signed a consent form on August 4, but noted it lacked a description of the specific procedures. Upon arriving for surgery on August 14, she reiterated her desire to only have the ingrown toenail, callus, and bump removed. However, Dr. Borcicky performed additional procedures without her consent, including cutting across three of her toes. The patient expressed her distress but was not addressed further by the doctor, who proceeded to bandage her foot and sent her home without providing adequate post-operative assistance.

The document references the legal standard for informed consent, indicating that a healthcare provider must disclose significant risks and procedures that a reasonable person would consider important, as established in relevant case law (Fain v. Smith and Otwell v. Bryant). The determination of whether informed consent was obtained is a factual question for a jury. Dr. Borcicky argued that the claim for lack of informed consent was correctly resolved by summary judgment, citing the consent form’s handwritten details of the procedures, particularly item (3), which the patient disputed.

Dr. Borcicky's argument hinges on the claim that Craig did not provide expert testimony to establish the standard of disclosure expected from a podiatrist, arguing that therefore no deviation from this standard was proven. However, the court disagrees, citing Rule 56 of the Alabama Rules of Civil Procedure, which allows summary judgment only when there are no genuine material facts in dispute. A key issue is whether Craig consented to the procedures that led to her injuries. Craig has provided an affidavit stating her specific requests for treatment, which disputes Borcicky's claims about consent for additional procedures. The court emphasizes that this case is fundamentally about whether Craig consented at all to the surgery, rather than merely informed consent regarding risks. Additionally, the form signed by Craig is questioned; it allegedly lacked clarity and completeness at the time of signing, and Borcicky has not convincingly refuted Craig's assertion that she communicated her treatment preferences prior to surgery. As a result, the court finds that there are factual questions warranting a jury's consideration, leading to the reversal of summary judgment and remanding the case for further proceedings.