Schell v. Collins

536 So. 2d 951, 1988 Ala. LEXIS 663, 1988 WL 142763

• Court: Supreme Court of Alabama
• Decided: December 9, 1988
• Docket: 87-672
• Status: Published

Opinions

JONES, Justice.

This appeal is from a summary judgment entered in favor of the defendant, Dr. John C. Collins, Jr., and made final pursuant to Rule 54(b), A.R.Civ.P. This litigation is based on a claim of medical malpractice. The plaintiff, Mardell S. Schell, was injured during a surgical operation to remove her gall bladder. Dr. Collins was not the primary physician caring for Schell, but he assisted during the surgical procedure. Dr. Collins was one of several defendants listed in Schell’s medical malpractice suit.

On November 4, 1987, Dr. Collins filed a motion for summary judgment, supported by his own affidavit and the affidavit of a medical expert. In opposition to the motion, Schell filed the affidavit of a medical expert.

These affidavits addressed the standard of care owed to a patient by a physician assisting in a surgical procedure. The affidavits conflict as to what the standard is within the community and as to whether Dr. Collins met a generally accepted standard. “The general rule in Alabama is that in medical malpractice cases expert medical testimony is required to establish what is and what is not proper medical treatment and procedure.” Powell v. Mullins, 479 So.2d 1119, 1120 (Ala.1985).

Genuine issues of material fact were, therefore, necessarily raised by Schell. Consequently, the motion for summary judgment was due to be overruled, and the judgment must be reversed.

REVERSED AND REMANDED.

TORBERT, C.J., and SHORES and ADAMS, JJ., concur. HOUSTON, J., concurs specially.