LAMONT v. BROOKWOOD HEALTH SERVICES, INC.

EMBRY, Justice.

Nell Lamont appeals from the summary judgment entered in behalf of Brookwood Health Services, Inc., in her action for damages resulting from the allegedly negligent failure of Brookwood to care for her before, during and after surgery. The action remains pending against other defendants. A proper Rule 54(b), ARCP, order was entered as a part of the summary judgment.

It is Lamont's contention that her counter-affidavit, which also incorporated a transcript of her oral deposition, shows the existence of a genuine issue of material fact, the negligence vel non of Brookwood's servant, agents, or employees, and entry of summary judgment was inappropriate. We agree.

Nell Lamont was admitted to Brookwood Hospital for the purpose of having a surgical procedure performed known as a jejunoileal by-pass designed to alleviate morbid obesity. In her oral deposition, and by affidavit, she says she had attended nursing school, had been employed in hospitals, understands certain standards required of nurses and other staff personnel in a hospital, and further, the following:

Brookwood's motion for summary judgment was submitted upon the pleadings and the deposition of Dr. A.G. Lemmon (Lamont's surgeon). Brookwood contends that the testimony of Dr. Lemmon indicates that no genuine issue of material fact exists and further that his opinion that Brookwood conformed to the standard of care exercised by other hospitals in the general area as required by § 6-5-484, Code 1975. To exemplify its position in that regard, Brookwood referred the trial court to the following:

We opine that the materials upon which the motion was submitted, taken with the evidence offered by Lamont, are sufficient to demonstrate that genuine issues of material fact present in this case require reversal of the summary judgment. At the least, Lamont's evidence shows that as to basic standards of nursing and hospital care, she was sufficiently expert to make an issue of fact as to whether Brookwood departed from those standards in its care and treatment of her as its patient. E.g., see Baker v. Chastain, 389 So.2d 932 (Ala.1980). Among other things, the evidence showed she had received training both as a licensed practical nurse and as a registered nurse, and had been a private duty nurse as well as having been employed in hospitals.

The sole remaining issue of law needing to be addressed is the proper interpretation of the following sentence found in § 6-5-484(a), Code 1975:

For the answer, we need look no further than two rather recent decisions of this court: Drs. Lane, Bryant, Eubanks and Dulaney v. Otts, 412 So.2d 254 (Ala.1982), and May v. Moore, 424 So.2d 596 (Ala. 1982). In those decisions, this court recognized that "`Same general neighborhood' refers to the national medical neighborhood or national medical community, of reasonably competent physicians acting in the same or similar circumstances." Therefore, in our view, the phrase "that degree of care, skill and diligence used by hospitals generally in the community" refers to the national hospital community. A hospital owes those present in connection with care and treatment, such as Lamont or one similarly situated, a duty to exercise that degree of care, skill, and diligence had and exercised by those hospitals engaged in the same kind of operation, in similar conditions or under similar circumstances.

The judgment below is due to be and is hereby reversed and the case remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

FAULKNER and BEATTY, JJ., concur.

TORBERT, C.J., and MADDOX, JONES, SHORES and ADAMS, JJ., concur in the result.

ALMON, J., not sitting.

TORBERT, Chief Justice (concurring in the result).

I concur only in the result because I cannot agree with that portion of the plurality's opinion that would adopt a national standard of care to apply to the operation of hospitals in Alabama. I still adhere to the views I expressed in Zills v. Brown, 382 So.2d 528, 534 (Ala.1980), and Drs. Lane, Bryant, Eubanks & Dulaney v. Otts, 412 So.2d 254, 262 (Ala.1982). The opinions of the plurality in Zills and the majority in Drs. Lane, Bryant, Eubanks & Dulaney, equate "same general neighborhood" with "national medical neighborhood." That holding is clearly contrary to the usual and customary meaning of "same general neighborhood," as well as the interpretation given that phrase by the courts of Alabama previously, by the federal courts applying Alabama law, and by the Legislature when it approved Code 1975, § 6-5-484.

The plurality in the present case would extend the questionable holding in Drs. Lane, Bryant, Eubanks & Dulaney to provide that the phrase "`that degree of care, skill and diligence used by hospitals generally in the community' refers to the national hospital community." Such a decision would again ignore a clear legislative intent and would overrule Alabama cases that have adopted and followed the locality rule. I concur in the reversal of the summary judgment, but only because the evidence offered in support of and in opposition to the summary judgment showed a genuine issue of material fact present in the case.

MADDOX, J., concurs.

JONES, Justice (concurring in the result):

I concur in the result of reversal, because this is a classical negligence case where the proffered evidence raises genuine issues of material fact, making summary judgment inappropriate. In my opinion, nothing in this case as postured calls for any discussion of the "community" standard prescribed by § 6-5-484, Code 1975.

SHORES, Justice (concurring in the result):

I concur in the result and would adhere to the view I expressed in Drs. Lane, Bryant, Eubanks and Dulaney v. Otts, 412 So.2d 254 (Ala.1982). I do not believe small hospitals in remote rural areas should be held to the same standard as well-equipped hospitals in metropolitan centers.

ADAMS, J., concurs.