McGill v. Szymela

330 So.3d 453

Janice MCGILL and Timothy McGill

v.Victor F. SZYMELA, M.D.

1190260

Supreme Court of Alabama.

December 31, 2020

Clark R. Hammond and Ben B. Robinson of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, for appellants.

Robert P. MacKenzie III, Sybil V. Newton, Reed R. Bates, and William A. Davis IV of Starnes Davis Florie, LLP, Birmingham, for appellee.

PARKER, Chief Justice.

Janice McGill and her husband, Timothy McGill, appeal from a judgment of the Jefferson Circuit Court against them in their medical-malpractice lawsuit against Victor F. Szymela, M.D. The McGills alleged that Dr. Szymela failed to properly perform Janice's temporomandibular-joint total-replacement ("TJR") surgery. We affirm.

I. Facts and Procedural History

In February 2014, Janice sought treatment from Dr. Szymela, a board-certified oral and maxillofacial surgeon, for her temporomandibular-joint ("TMJ") disorder. Janice had been experiencing clicking and locking of her jaw and excruciating jaw and ear pain. Dr. Szymela recommended TJR surgery. Dr. Szymela performed the surgery on April 1, 2014, installing prosthetic joints.

Janice alleged that she experienced distinct, worse pain immediately after the surgery and that the new pain did not resolve with time. She continued to experience popping in her jaw. She alleged that her overbite was exacerbated by the surgery. She also alleged that she could not open her mouth as wide as previously and that she lost sensation in her lips, which diminished her ability to speak clearly.

Later in 2014, Janice sought treatment from Dr. Michael Koslin. Dr. Koslin referred Janice to a pain-management specialist but eventually determined that her pain was unresponsive to conservative treatment. In 2017, Dr. Koslin surgically removed the prosthesis. Several weeks later, Dr. Koslin implanted custom joints. Janice alleged that Dr. Koslin's treatment relieved her pain.

In March 2016, Janice sued Dr. Szymela, alleging that he breached the standard of care for an oral and maxillofacial surgeon in the following ways relevant to this appeal:

"a. He failed to provide or offer alternative treatments to remedy [Janice's] symptoms before recommending [TJR] surgery;

"...

"f. He failed to install the medical devices properly;

"...

"h. He failed to properly perform the [TJR] surgery."

Janice's husband Timothy joined the complaint, alleging loss of consortium.

The McGills identified Dr. Louis G. Mercuri as one of their expert witnesses regarding oral and maxillofacial surgery. On Dr. Szymela's motion, the trial court ruled that Dr. Mercuri did not qualify as a "similarly situated health care provider" under § 6-5-548(c)(4), Ala. Code 1975, because he had not practiced in Dr. Szymela's specialty within the year preceding Dr. Szymela's alleged breach. Thus, the court excluded Dr. Mercuri as a witness.

At trial, the McGills called Dr. Koslin and Dr. Robert Pellecchia as experts. Dr. Szymela and defense expert Dr. Gary Warburton also testified.

At the close of all evidence, on Dr. Szymela's motion, the trial court entered a partial judgment as a matter of law ("JML") in favor of Dr. Szymela. In pertinent part, the JML eliminated the McGills' issues of improper installation of the prosthesis and improper performance of the surgery, the latter of which included Dr. Szymela's alleged failure to maintain Janice's occlusion (distinct bite alignment) in the surgery. Other issues were waived or consolidated, and the only issues submitted to the jury were whether Dr. Szymela breached the standard of care by failing to provide or offer alternative treatments to surgery and whether Timothy suffered loss of consortium as a result of that breach. The jury found in favor of Dr. Szymela, and the trial court entered a final judgment on the verdict. The McGills appeal, contending that the trial court erred in excluding Dr. Mercuri as an expert witness and in entering the partial JML.

II. Standards of Review

"In determining whether the trial court properly precluded a designated expert from testifying under § 6-5-548[, Ala. Code 1975 ], we apply the [excess]-of-discretion standard of review." Tuck v. Health Care Auth. of Huntsville, 851 So. 2d 498, 501 (Ala. 2002). The standard of review of a judgment as a matter of law is the same as the standard used by the trial court in deciding the motion, i.e., whether, when the evidence is viewed in the light most favorable to the nonmovant, the nonmovant presented substantial evidence in support of his position. City of Birmingham v. Sutherland, 834 So. 2d 755, 758 (Ala. 2002). Substantial 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 Fla., 547 So. 2d 870, 871 (Ala. 1989) ; see also § 12-21-12(d).

III. Analysis

The McGills present two issues on appeal. First, they argue that the trial court erred by excluding Dr. Mercuri as an expert witness because it incorrectly concluded that he did not meet the statutory qualifications of a "similarly situated health care provider." Second, they argue that the trial court erred by entering the JML on their claims of improper installation of the prostheses and improper surgical performance.

A. Exclusion of Dr. Mercuri

The McGills contend that the trial court erred in excluding Dr. Mercuri as an expert on the basis that he did not meet the statutory qualifications of a "similarly situated health care provider" under § 6-5-548, Ala. Code 1975. "In determining whether the trial court properly precluded a designated expert from testifying under § 6-5-548, we apply the [excess]-of-discretion standard of review." Tuck, 851 So. 2d at 501. Although the McGills argue that this Court should conduct a de novo review because this issue involves interpreting § 6-5-548, we decline to depart from our consistent practice of applying the excess-of-discretion standard to trial courts' evidentiary rulings under this statute, see, e.g., Dowdy v. Lewis, 612 So. 2d 1149, 1152 (Ala. 1992) ; Biggers v. Johnson, 659 So.2d 108, 112 (Ala. 1995) ; Holcomb v. Carraway, 945 So.2d 1009, 1017 (Ala. 2006) ; Smith v. Fisher, 143 So. 3d 110, 122 (Ala. 2013).

Section 6-5-548, part of the Alabama Medical Liability Act of 1987, § 6-5-540 et seq., Ala. Code 1975, sets forth the criteria for qualifying a health-care provider as an expert witness where the medical-malpractice defendant is a specialist:

"Notwithstanding any provision of the Alabama Rules of Evidence to the contrary, if the health care provider whose breach of the standard of care is claimed to have created the cause of action is certified by an appropriate American board as a specialist, is trained and experienced in a medical specialty, and holds himself or herself out as a specialist, a ‘similarly situated health care provider’ is one who meets all of the following requirements:

"(1) Is licensed by the appropriate regulatory board or agency of this or some other state.

"(2) Is trained and experienced in the same specialty.

"(3) Is certified by an appropriate American board in the same specialty.

"(4) Has practiced in this specialty during the year preceding the date that the alleged breach of the standard of care occurred."

§ 6-5-548(c) (emphasis added).

The trial court explained that it excluded Dr. Mercuri on the basis of subsection (c)(4)'s "practiced" requirement. The court wrote:

"The Court read and considered documents contained within the court file that state that Dr. Mercuri retired in 2010, and he was not actively practicing during the year preceding the date of Dr. Szymela's alleged breach of the standard of care, to wit: April 1, 2014. The Court considered testimony from the deposition of Dr. Mercuri, dated February 23, 2018, that he retired from the practice of medicine in December 2010; that the year of 2010 was the last time Dr. Mercuri performed a TMJ replacement or any type of surgical procedure; that Dr. Mercuri is board certified but in a retired status, which means that he no longer practices medicine and, thus, has not practiced medicine since 2010. Dr. Mercuri further stated that his board certification changed from active to ‘reserve’/retired in 2010. The Court further considered an email from Dr. Louis Mercuri on November 6, 2017, addressed to Dr. Gary Warburton, wherein, he states: ‘...There is a TMJR legal case in Alabama that I have been consulting on that needs an actively practicing, Boarded [oral and maxillofacial surgeon] with knowledge and experience in [TJR surgery]. I can consult, but cannot be an expert witness because I am retired.’ "

(Citation omitted; emphasis trial court's.) The McGills argue that the court wrongly concluded that Dr. Mercuri had not "practiced" in the specialty in the year before Dr. Szymela performed Janice's surgery.

The Alabama Medical Liability Act of 1987 does not define "practiced" for purposes of § 6-5-548(c)(4). Here, all expert witnesses acknowledged that Dr. Mercuri was a world-renowned TMJ surgeon, scholar, and surgical instructor. Dr. Mercuri was lifetime-certified by the American Board of Oral and Maxillofacial Surgery. However, Dr. Mercuri stopped performing surgeries in the United States in 2010, and his certification then changed to "retired" status. Dr. Mercuri then devoted himself to research in the field of TMJ prosthetics and to teaching TJR surgical technique, including supervising students performing surgery on cadavers. He also consulted for a manufacturer of custom TMJ prostheses. In August 2013, Dr. Mercuri was involved with one TJR surgery in Brazil, which his affidavit said he "performed" with another doctor. In Dr. Mercuri's deposition, he described his role in that surgery as that of a "visiting professor." He explained that he was able to practice in South America because some South American countries were "just pretty happy to get somebody who has a lot of experience to assist or to do...