The Alabama Medical Liability Act (AMLA) governs actions against health care providers in connection with the provision of health care. Ala. Code § 6-5-540, et al. As the political target of the plaintiffs’ bar, the AMLA has a number of health care provider-friendly provisions including:
- Detailed pleading requirements Ala. Code § 6-5-551.
- Plaintiff has the burden of proving the health care provider failed to exercise such reasonable care, skill, and diligence as other similarly situated health care providers in the same general line of practice ordinarily have and exercise in a like case. Ala. Code § 6-5-548(a).
- Strict definitions of “similarly situated health care providers”. Ala. Code § 6-5-548(b) and (c).
- Standard of proof is by substantial evidence. Ala. Code § 6-5-549.
- Liability insurance limits are not discoverable. Ala. Code § 6-5-548.
- The plaintiff must show the health care provider’s negligence “probably caused” rather than “possibly caused”, the plaintiff’s injuries. Sorrell v. King, 946 So. 2d 854 (Ala. 2006).
- As a general rule, the plaintiff must proffer expert testimony from a health care provider similarly situated to the defendant’s health care provider. Sorrell v. King, 946 So. 2d 854 (Ala. 2006).
- Discovery of other acts or omissions not specifically set out in the complaint is prohibited. Ala. Code § 6-5-551.
Additionally, credentialing, quality assurance, and peer review information is not discoverable as to some health care providers. Ala. Code § 6-5-333(d); Ala. Code §22-21-8
AMLA and the Allied Health Care Professional
Alabama’s favorable treatment of health care professionals makes applying AMLA a high priority on any defense lawyer’s litigation checklist. Although there is little doubt that a conventional hospital, doctor, or dentist are healthcare providers under AMLA, there is a surprising vagueness in the law (and in some cases an absence of authority) on whether certain allied healthcare professionals are healthcare providers under the AMLA.
Allied health professionals are health care professions distinct from medicine and nursing. Allied health care involves services related to identifying, evaluating, and preventing diseases and disorders; dietary and nutrition services; rehabilitation and health systems management; and additional services. Professions commonly associated with allied health include:
- Audiologists and speech-language pathologists;
- Physical therapists, occupational therapists, and respiratory therapists;
- Diagnostic medical personnel (medical laboratory scientists, cytogenetic technologists, diagnostic molecular scientists, histotechnologists, and pathologists’ assistants);
- Imaging specialists (radiographers, nuclear medicine technologists, and sonographers); nutritionists and dietitians;
- Physician assistants;
- Dental hygienists and dental assistants;
- Emergency medical personnel (EMTs, paramedics);
- Exercise science professionals (athletic trainers, exercise physiologists, kinesiotherapists);
- Health information technologists;
- Health educators (asthma educators, diabetes educators);
- Counselors (genetic counselors, mental health counselors, family therapists);
- Specialists in cancer diagnosis and treatment (medical physicists, medical dosimetrists, and radiation therapists); and,
- Pharmacy personnel (pharmacy technicians and assistants).
See 42 U.S.C.S. § 295p(5).
Courts have applied the AMLA to some allied health care professionals through the AMLA’s “other health care providers” provision. The AMLA defines a “health care provider” as “[a] medical practitioner, dental practitioner, medical institution, physician, dentist, hospital, or other health care provider as those terms are defined in Section 6-5-481.” § 6-5-542(1), Ala. Code 1975.
Alabama Code § 6-5-481(8) defines “other health care providers” as “[a]ny professional corporation or any person employed by physicians, dentists, or hospitals who are directly involved in the delivery of health care services.”
Unfortunately, the Alabama Supreme Court’s interpretation of “other healthcare providers” under AMLA has not always been uniform. See Ex parte Partners in Care, Inc., 986 So. 2d 1145, 1148 (Ala. 2007). However, an employment relationship with a physician, dentist, or hospital is not necessarily required: “[A]t a minimum, a physician, dentist, or hospital must have made use of that corporation … in the physician’s, or dentist’s, or hospital’s delivery of health-care services to the plaintiff-patient.” Id. (emphasis in original). “[I]t is not a person’s or corporation’s occupation or type of business that determines whether AMLA applies, it is whether that person or corporation was used by a physician, dentist, or hospital in delivering health-care services to a patient.” Ex parte Partners in Care, Inc., 986 So.2d 1145, 1149 (Ala. 2007).
“Other health providers” Under AMLA
- Medical laboratory. A medical laboratory qualified as an “other health care provider” under AMLA because its testing of a specimen was integral to the physician’s delivery of health care services to the patient. Anderson v. Ala. Reference Labs, 778 So. 2d 806, 810 (Ala. 2000); Akins v. Lab. Corp. of Am., 2012 U.S. Dist. LEXIS 199852; Billingsley v. Labcorp, Inc., 2006 U.S. Dist. LEXIS 63573; Marsh v. Wenzel, 732 So. 2d 985 (Ala. 1998); Guthrie v. Bio-Medical Lab., Inc., 442 So. 2d 92 (Ala. 1983)
- Drug Manufacturer. A company that produced a defective drug used by a physician was not an “other health care provider” because the physician was not using the company’s product to deliver health care services to patients. Ex parte Partners in Care, 986 So. 2d 1145 (Ala. 2007).
- A pharmacist is an “other health care provider” under AMLA. Cackwoski v. Wal-Mart, 767 So. 2d 319 (Ala. 2000). See also Ex parte Rite Aid of Ala., Inc., 768 So. 2d 960 (Ala. 2000)
- Registered Nurse. An RN is an “other health care provider” where the RN’s contractual relationships with a hospital and physician were “sufficiently analogous to employment relationships. Ex parte Main, 658 So. 2d 384, 387 (Ala. 1995)
- Red Cross: Red Cross is an “other health care provider,” in part because it was “directly involved in the delivery of health care services”. Wilson v. American Red Cross, 600 So. 2d 216, 218 (Ala. 1992)
- An orthotist is an “other health care provider” under AMLA. Tuscaloosa Orthopedic Appliance Co. v. Wyatt, 460 So. 2d 156 (Ala. 1984)
- Are health care providers under Ala. Code §6-5-549.1
- Are health care providers under Ala. Code §6-5-549.1
- Are health care providers under Ala. Code §6-5-549.1
- A pharmacy was not an “other health care provider” because the pharmacy shipped bulk orders to physicians to use on patients who might need treatment. Ex parte Partners in Care, Inc., 986 So. 2d 1145 (Ala. 2007)(pharmacy not other healthcare provider because pharmacy shipping bulk order the physicians to use on patients who might need treatment)
- Nursing home management. AMLA applies to a professional corporation that was under contract to manage a nursing home where the management company was responsible for hiring employees as well as supervising, managing, and operating the nursing home. Because the company was employed to manage the nursing home, the court concluded that it was “directly involved in the delivery of health-care services. Crowne, 740 So.2d 400, 405 (Ala. 1999)
- Psychological associate. A psychological associate with a master’s degree in rehabilitation counseling and a bachelor’s degree in social work working for the Alabama Department of Corrections who decided whether inmates should be placed in a crisis cell, removed from a crisis cell, or referred to the mental health professionals was not an “other health care provider” under AMLA. Glenn v. Corizon LLC, 2022 US. App. LEXIS 9320
- Patient Monitoring. The defendants’ monitoring of the plaintiff was inextricably linked to the physician’s treatment of patients; therefore, the defendants were “other health care providers” under AMLA. Verret v. Ala. Dep’t of Mental Health, 2007 U.S. Dist. LEXIS
- Rehabilitation Supervisor. A registered nurse assigned by an insurance underwriter to supervise the patient’s rehabilitation was an “other health care provider”); Ex parte Main, 658 So. 2d 384, 387 (Ala. 1995)
- Worker’s Compensation Claims Adjuster. AMLA “other health care provider” provision did not apply to a claims adjuster who made a determination that a plaintiff’s injuries were not work-related because no physician, dentist or hospital used the claims adjuster in delivering health care. Raye v. Employer’s Ins., 345 F. Supp. 2d 1313 (S.D. Ala. 2004)
Allied Health Care Facilities and AMLA
The AMLA defines a “health care provider” as “[a] medical practitioner, dental practitioner, medical institution, physician, dentist, hospital, or other health care provider as those terms are defined in Section 6-5-481.” § 6-5-542(1), Ala. Code 1975. Alabama Code § 6-5-481(7), in turn, cites § 22-21-20:
(1) Hospitals. — General and specialized hospitals, including ancillary services; independent clinical laboratories; rehabilitation centers; ambulatory surgical treatment facilities for patients not requiring hospitalization; end-stage renal disease treatment and transplant centers, including freestanding hemodialysis units; abortion or reproductive health centers; hospices; health maintenance organizations; and other related health care institutions when such institution is primarily engaged in offering to the public generally, facilities and services for the diagnosis and/or treatment of injury, deformity, disease, surgical or obstetrical care. Also included within the term are long-term care facilities such as, but not limited to, skilled nursing facilities, intermediate care facilities, assisted living facilities and specialty care assisted living facilities rising to the level of intermediate care. The term “hospitals” relates to health care institutions and shall not include the private offices of physicians or dentists, whether in individual, group, professional corporation, or professional association practice. This section shall not apply to county or district health departments.
Many of the aforementioned facilities qualifying as hospitals under AMLA utilize allied health care professionals. Defense counsel should carefully examine whether the medical facility qualifies as a hospital under AMLA. Alabama appellate courts carefully examined whether several facilities qualify as hospitals under AMLA:
- Nursing homes. A nursing home, though not explicitly included in the list of hospitals in the AMLA, was a skilled intermediate-care nursing facility and was a hospital for purposes of the AMLA Rosemont, Inc. v. Marshall, 481 So. 2d 1126, 1129 (Ala. 1986); Ex parte Northport Health Serv., 682 So. 2d 52 (Ala. 1996)
- Mental Health Facilities. The AMLA does not apply to mental health facilities because they are not “health care providers” within the definition of the Act. Ex parte Alabama Department of Mental Health & Mental Retardation, 723 So. 2d 11, 13 (Ala. 1998) But, see Ex parte Sawyer, 892 So. 2d 898, 902 (Ala. 2004).
Conclusion
Doctors, nurses, and hospitals are archetypal medical malpractice defendants. However, the Alabama Medical Liability Act, and its health care-friendly provisions, may apply to many allied healthcare professionals. When defending an allied health professional, defense counsel should establish a physician, dentist, or hospital made use of the allied health care professional’s services in rendering health care to the patient/plaintiff. Next, defense counsel should conduct a detailed assessment of the allied health care professional’s education and training. Then, they should examine the defendant’s provision of care to the patient/plaintiff. Finally, in applying AMLA in the defense of allied health professionals, defense counsel should establish the defendant’s relationship with a physician, dentist, or hospital in the provision of health care to the patient/plaintiff.
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