Olsen v. Rich

Citations: 657 So. 2d 875; 1995 WL 111930Docket: 1931196

Court: Supreme Court of Alabama; March 16, 1995; Alabama; State Supreme Court

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Lillian and Richard Olsen sued Dr. Gary M. Rich, Nurse Susan Bowden, and Providence Hospital for alleged negligence in the medical treatment of Lillian Olsen, who suffered an allergic reaction during a heart catheterization on December 19, 1989. The jury ruled in favor of the defendants, leading the Olsens to request a new trial based on two main arguments: a violation of the Batson v. Kentucky ruling regarding jury composition and the improper admission of expert testimony from Dr. William R. Higgs. Mrs. Olsen, who had a history of allergies, claimed that the medical staff failed to notice and address her pain during the procedure, which she argued indicated negligence. However, she provided inconsistent testimony regarding whether she communicated her pain to the nurses. The trial court denied the motion for a new trial, and the Olsens appealed the decision.

After the trial court narrowed the venire to 30 members, with 6 being black, the defendants used 5 of their 9 peremptory strikes against black jurors. The plaintiffs raised a Batson objection before the jury was sworn in. The trial court did not explicitly determine if a prima facie case of discrimination was made but asked the defendants to justify their strikes. The defendants provided reasons for each strike, which the trial court accepted, thereby overruling the objection.

The burden of proof lies with the party alleging discrimination to establish a prima facie case, after which the burden shifts to the defendants to provide legitimate, nondiscriminatory reasons for their strikes. If race-neutral reasons are presented, the challenging party may then demonstrate that these reasons are a pretext. The trial court's evaluation of the legitimacy of the reasons will not be overturned unless clearly erroneous.

For the specific strikes: 
1. R.T. was struck due to his disability and potential for undue sympathy towards the plaintiff; he was the only veniremember with a disability, supporting a race-neutral determination.
2. D.M. was removed because of his expressed discomfort with medical procedures relevant to the case, indicating a legitimate, race-neutral concern.
3. R.B. was struck due to her unemployment and negative demeanor during questioning. The defense had also struck a white juror for being unemployed, and demeanor has been recognized as a valid, race-neutral reason for a strike.

In summary, the trial court's findings concerning the race-neutral reasons provided by the defendants for their peremptory strikes were upheld as not clearly erroneous.

Feelings can be expressed through non-verbal cues, such as gestures and facial expressions, as established in Reynolds v. Benefield. The trial court's decision to strike veniremembers R.B., B.C., and V.N. was not a clear error. The defense justified striking B.C. and V.N. due to their youth and unskilled, lower-paying jobs, which could make them sympathetic to the plaintiffs’ witnesses—five young women testifying about Mrs. Olsen’s pain and care. The plaintiffs argued that a white unskilled veniremember was not struck, but the defense clarified that B.C. and V.N. were uniquely young and unskilled, unlike any white veniremembers. Age and employment are valid reasons for peremptory strikes when they may affect jury impartiality. The court affirmed that the strikes were race-neutral.

The plaintiffs challenged the admissibility of Dr. William R. Higgs as an expert witness, claiming he did not meet the criteria of a "similarly situated health care provider" under the Alabama Medical Liability Act. They argued that since Dr. Rich is a board-certified cardiologist, Dr. Higgs must also be board-certified to testify on the standard of care. The Act requires substantial evidence of a health care provider's failure to meet the standard of care, which is judged against similarly situated providers. The court, referencing Medlin v. Crosby, outlined a three-step analysis to determine if an expert qualifies as a "similarly situated health care provider," emphasizing the need to establish the field of medical practice before assessing the qualifications of the expert witness.

For a defendant health care provider to be considered a specialist under legal standards, specific criteria must be met, which include board certification, relevant training and experience, and representing oneself as a specialist. The case involves allegations against Dr. Rich for failing to adequately assess Mrs. Olsen's pain complaints and improperly placing a Hep-lock device, resulting in an intra-arterial injection rather than a venous one. Plaintiffs claim this negligence caused significant pain and that Dr. Rich and his nurses did not properly respond to visible signs of injury.

Testimony regarding the standard of care was contested on the grounds that Dr. Higgs was not a board-certified cardiologist, despite defense counsel asserting his expertise with Hep-locks and IVs. The trial court allowed Dr. Higgs's testimony to proceed, focusing on Dr. Rich's standard of care in relation to the Hep-lock device. Notably, the plaintiffs did not claim negligence regarding the heart catheterization itself, and the standard of care applied pertains to intravenous medication administration.

Dr. Rich is established as a specialist, being a board-certified cardiologist with extensive experience since 1975, including performing around 500 heart catheterizations annually. The analysis concludes that while Dr. Rich qualifies as a cardiac specialist, the negligence claims are centered on intravenous administration rather than catheterization, leading to the need for the court to assess whether Dr. Rich's specialty aligns with the area of the alleged breach.

Dr. Rich is not board certified in pulmonary or vascular medicine, which are relevant areas for the alleged negligence involving intravenous injections and vascular injuries. Consequently, he does not qualify as a "specialist" under Alabama Code § 6-5-548(c). The assessment of whether Dr. Higgs can be considered a "similarly situated health care provider," as defined in § 6-5-548(b), requires him to meet specific criteria: he must be licensed, trained, and experienced in the same discipline, and have practiced in that discipline during the year preceding the alleged breach.

Dr. Higgs, a vascular, cardiac, pulmonary, and esophageal surgeon, fulfills these criteria. He graduated from Louisiana Tech University and Baylor College of Medicine, completed his internship in Memphis, and has undergone residency training in general and vascular surgery, as well as pulmonary medicine. He has been in private practice since 1976 and serves on the staff of multiple hospitals. His practice includes vascular surgeries and procedures involving veins and arteries, making him well-versed in the complications related to these areas.

Dr. Higgs frequently works in catheterization labs and has recently treated a patient with complications similar to those experienced by Mrs. Olsen, the patient in question. Given that Dr. Rich consulted Dr. Higgs for medical advice regarding Mrs. Olsen's injuries, the trial court correctly determined that Dr. Higgs meets the qualifications of a "similarly situated health care provider" under § 6-5-548(b). Thus, the court's decision to allow Dr. Higgs to testify was affirmed.