Mock v. Allen

REL: 06/30/2000 MOCK v ALLEN

NOTICE: This opinion is subject to formal
revision before publication in the advance sheets of Southern
Reporter. Readers are requested to
notify the Reporter of Decisions, Alabama Appellate Courts, 300
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opinion is printed in Southern Reporter.

SUPREME COURT OF
ALABAMA

OCTOBER TERM, 1999-2000

1980985

Shellie Mock, Jr.

Dr. Robert Allen

Appeal from Houston Circuit Court

(CV-93-772)

BROWN, Justice.

Shellie Mock, Jr., appeals from a judgment entered on a jury verdict in favor
of the defendant Dr. Robert Allen. We affirm.

The evidence presented at trial established that in September 1991, Mock was
involved in an automobile accident while he was in Austin, Texas. As a result of
the accident, he suffered injuries to his head, neck, back, left hip/groin area,
and left knee. Mock was treated in the emergency room of a hospital in Austin.
Because Mock complained of pain in his neck, back, and left hip and groin area,
the treating physician x-rayed Mock’s left hip and his spine; the results showed
no injury. Mock was subsequently released.

Mock returned home to Alabama, where he sought treatment from Dr. Andy Kirk
for pain and bruising. While he was a patient of Dr. Kirk’s, Mock also sought
treatment from Scott Hannen, a local chiropractor. However, Mock continued to
experience pain in his neck, back, left hip, and left leg. Hannen suggested that
Mock see Dr. Robert Allen, a local neurologist.

Mock first saw Dr. Allen on November 19, 1991. During Mock’s initial
appointment, he advised Dr. Allen of his complaints. Dr. Allen performed a
thorough physical examination, paying particular attention to the areas where
Mock had complained of experiencing pain–the neck, back, left hip/groin area,
and left leg. According to Mock, Dr. Allen fondled his genitals during this
examination. Dr. Allen denied doing so. Following his examination, Dr. Allen’s
initial diagnosis was that Mock was suffering from cervical and lumbar strain.
Dr. Allen wanted to rule out radiculopathy, a disease that would cause pain to
radiate through the nerves extending from Mock’s spine, through his pelvic
region, and into his injured left leg. Dr. Allen determined that several tests
needed to be performed before he could make an accurate diagnosis, including an
electromyographic test (an “EMG”) and a magnetic resonance imaging test (an
“MRI”). These tests were performed at Southeast Alabama Medical Center on
November 21 and 25, 1991.

Mock returned to Dr. Allen’s office for a follow-up visit on November 25,
1991. After reviewing Mock’s EMG and MRI results, Dr. Allen diagnosed Mock as
suffering from cervical and lumbar strain. He prescribed a course of treatment
that included cervical traction and the prescription medication Limbitrol, a
muscle relaxant. Mock claimed that Dr. Allen again fondled him during a physical
examination on that follow-up visit. Although Dr. Allen did not recall
conducting a physical examination on Mock on that occasion, he said that he may
have done so. Dr. Allen, however, denied fondling Mock. At the conclusion of the
visit, Dr. Allen instructed Mock to return for another follow-up visit in two
weeks.

One week later, on December 3, 1991, Mock called Dr. Allen’s office,
complaining of severe pain. He asked for an immediate appointment. Later that
day, Dr. Allen examined Mock. Upon examining Mock’s neck, back, and left groin
area, Dr. Allen determined that the traction had failed to improve his
condition. Dr. Allen gave Mock two injections–one of celestone soluspan, and
one of phenobarbital–and instructed him to remain in the examining room for
approximately 15 minutes. According to Dr. Allen, this was standard procedure,
to ensure that Mock did not have an adverse reaction to the medications.
According to Mock, the injections knocked him out, and when he awoke, Dr. Allen
was sitting between his legs “messing with” his genitals. Mock stated that he
asked Dr. Allen what he was doing, and Dr. Allen said that he was checking for a
hernia.

Dr. Allen denied touching Mock; he stated that he went in the examining room
to see if Mock had had any adverse reaction to the medications, and that when he
discovered that he had not, he told him that he could get dressed and leave.
Mock dressed and left the office. However, he telephoned Dr. Allen’s office the
following day, again complaining of severe pain. Dr. Allen spoke with Mock; he
gave him the option of returning to his office for another course of injections,
or going to the hospital. Mock chose hospitalization, and Dr. Allen’s office
arranged for him to be admitted to Southeast Alabama Medical Center.

Mock was hospitalized from December 4 to December 10, 1991. As required by
hospital policy, Dr. Allen performed an initial examination of Mock. Dr. Allen
did not recall whether he touched Mock’s genitals during that examination, but
he stated that it was possible that he did. Dr. Allen ordered intravenous pain
medication and muscle relaxants for Mock; he also prescribed intensive physical
therapy. Dr. Allen made daily follow-up visits to Mock, to determine how he was
responding to the treatment. Mock claimed that during each visit, Dr. Allen
fondled him. Mock stated that following one of Dr. Allen’s visits, his aunt–a
nurse at the hospital–came by to visit and he broke down and told her what had
happened.

After several days, Mock’s condition began to improve, and Dr. Allen switched
Mock from intravenous to oral medications. Dr. Allen testified that on December
9 he determined that Mock’s condition had improved sufficiently so that he could
be released from the hospital the following day. Mock maintained that his
December 10 release was triggered by a confrontation he had had with Dr. Allen,
in which he told Dr. Allen that Dr. Allen could not touch his genital area
anymore. Shortly after this confrontation, Mock says, he was told that he was
being discharged from the hospital.

Upon his discharge from the hospital, Mock was given prescriptions for
Voltaren and Elavil, and an appointment card showing a December 19, 1991, office
visit with Dr. Allen. On December 12 Mock telephoned Dr. Allen and told him that
he was still in pain, and that he wanted additional medication. Dr. Allen
refused to give Mock any more medication. It appears that, at this point, the
doctor-patient relationship between Mock and Dr. Allen ended, and each party
claims to be the one who ended the relationship. Mock stated that not long after
his discharge, he contacted the hospital and complained about Dr. Allen’s
alleged improper conduct.

Dr. Allen denied that he had touched Mock improperly. Moreover, three nurses
who cared for Mock during his hospital stay testified that Mock did not complain
of improper conduct by Dr. Allen, nor did he exhibit any signs of emotional
distress. Mock made no allegations against Dr. Allen to Dr. William Reynolds,
the internist he saw on December 12, 1991, or to Dr. William Hanson, the
orthopedic surgeon who treated him beginning in April 1992. Dr. Hanson testified
that Mock first consulted him in April 1992 complaining of pain in his chest and
on his left side. Dr. Hanson also testified that Mock told him that he was
suffering pain in his left pelvic area. Dr. Hanson’s notes described the pain as
being in the iliac crest, where the sartorius muscle originates. Dr. Hanson
testified that the sartorius muscle runs from the pelvic/groin area to the inner
knee, and that an examination of the muscle required that it be palpated.

The only physician to whom Mock related his complaints against Dr. Allen was
Dr. Alan Prince, another local neurologist from whom Mock sought treatment. Dr.
Prince testified that an examination of Mock based on his complaints would not
have required touching his genitals.

At trial, Mock objected to the trial court’s ruling that his action against
Dr. Allen was governed by the Alabama Medical Liability Act, ? 6-5-540 et seq.,
Ala. Code 1975 ( the “AMLA”). As part of his case, Mock unsuccessfully attempted
to offer evidence of other alleged wrongful acts by Dr. Allen, namely, that Dr.
Allen had had improper contact with five other male patients, each of whom was
prepared to testify that Dr. Allen had touched them inappropriately during an
examination. The trial court also prohibited Mock’s attempt to offer evidence of
Dr. Allen’s alleged sexual preference. Mock’s case against Dr. Allen was
submitted to a jury, which returned a verdict in favor of Dr. Allen.

Mock first argues that the trial court erred in ruling that his claims
against Dr. Allen were governed by the AMLA.

The AMLA applies “[i]n any action for injury or damages or wrongful death,
whether in contract or in tort, against a health care provider for breach of the
standard of care.” ? 6-5-548(a), Ala. Code 1975. A “health-care provider”
includes a “medical practitioner,” that is, a medical doctor or osteopath
licensed to practice in Alabama. ?? 6-5-542(1) and 6-5-481(1), Ala. Code 1975.
Although the AMLA applies only to medical-malpractice actions, a plaintiff
cannot avoid application of the AMLA by “creative pleading.” This Court has
consistently held that it is the substance of the action, rather than the form,
that is the touchstone for determining whether an action is actually one
alleging medical malpractice. Allred v. Shirley, 598 So. 2d 1347 (Ala.
1992); Benefield v. F. Hood Craddock Clinic, 456 So. 2d 52 (Ala. 1984);
Sellers v. Edwards, 289 Ala. 2, 265 So. 2d 438 (1972). Over the years,
this Court has been called upon to determine whether a number of cases filed
against physicians and other health-care providers were, in fact, governed by
the AMLA. We have held generally that “[c]laims alleging misrepresentations made
during the course of a doctor-patient relationship are claims of malpractice and
are governed by the AMLA.” Ex parte Sonnier, 707 So. 2d 635, 638 (Ala.
1997) (citing Benefield v. F. Hood Craddock Clinic, 456 So. 2d at 54).
This Court has also held that informed- consent claims brought against
physicians and surgeons are governed by the AMLA. See Otwell v. Bryant,
497 So. 2d 111 (Ala. 1986); Fain v. Smith, 479 So. 2d 1150 (Ala. 1985).
Furthermore, this Court has held that claims brought against health-care
providers purporting to be claims under the Alabama Extended Manufacturer’s
Liability Doctrine (“AEMLD”) are governed by the AMLA, when the act forming the
basis of the patient’s claims occurred during the course of the treatment and
constituted the treatment sought from the health-care provider. Mobile
Infirmary v. Delchamps, 642 So. 2d 954, 956-57 (Ala. 1994) (two-year statute
of limitations contained in the AMLA applied to a patient’s action against a
health-care provider for damages under the AEMLD arising out of the surgical
placement of a temporomandibular implant in her jaw).

Mock argues, however, that the AMLA does not apply to his case because “[t]he
acts of intentional sexual assault of which [he] complains were for no medical
reason.” He cites Gunter v. Huddle, 724 So. 2d 544 (Ala. Civ. App. 1998),
as support for his contention. In Gunter, the Court of Civil Appeals held
that a sexual relationship between a patient and a nonpsychiatric physician was
outside the scope of the physician’s professional services and did not
constitute professional malpractice, in the absence of evidence that the patient
had been led to believe by that physician that the sexual relationship was part
of the patient’s treatment. 724 So. 2d at 546. Although the Gunter
decision presented a question of first impression in Alabama, the decision
followed the general rule applied in other jurisdictions.

However, the instant case does not involve allegations of a sexual
relationship, as was the case in Gunter, where the alleged sexual
relationship between the patient and her physician was conducted in an office
setting as well as away from the office. Indeed, most of the reported cases
where appellate courts have declined to hold that the physician’s conduct
constituted professional malpractice involved either an intimate sexual
relationship or sexual misconduct having no connection with the rendering of
professional services. See St. Paul Ins. Co. of Illinois v. Cromeans, 771
F. Supp. 349, 35 (N.D. Ala. 1991) (physician’s sexual conduct toward minor
patients–masturbating in front of them, fondling the patients, attempting to
convince patients to have sex with him–did not constitute professional
services, and, thus, physician’s conduct was not covered by his malpractice
insurance); McQuay v. Guntharp, 336 Ark. 534, 540-41, 986 S.W.2d 850,
(1999) (physician’s fondling of a patient’s breasts while using a stethoscope to
listen to her heart and lungs did not constitute malpractice); Atienza v.
Taub, 194 Cal. App. 3d 388, 393, 239 Cal. Rptr. 464 (1987) (sexual
relationship between patient and physician who was treating her for an
industrial injury did not constitute malpractice); Odegard v. Finne, 500
N.W.2d 140, 143 (Minn. Ct. App. 1993) (sexual relationship between patient and
physician who was treating her for colitis was not malpractice); Mindt v.
Winchester, 151 Or. App. 340, 345, 948 P.2d 334, 336 (1997) (sexual
relationship between patient’s wife and the physician treating the patient for
infertility was not malpractice); New Mexico Physicians Mutual Liability Co.
v. LaMure, 116 N.M. 92, 95-96, 860 P.2d 734 (1993) (physician’s sexual
assault of patient he was treating for an infected thumb was not malpractice and
thus was not covered under his malpractice insurance); Standard Fire Ins. Co.
v. Balkeslee, 54 Wash. App. 1, 9, 771 P.2d 1172 (1989) (sexual assault of
patient by her dentist was not malpractice and thus was not covered by dentist’s
malpractice insurance).

By contrast, in cases where the alleged sexual misconduct occurs as part of a
physician’s examination and/or treatment of a patient, the conduct is considered
to have occurred during the delivery of professional services, and is therefore
cognizable as a medical-malpractice claim. See Hagan v. Antonio, 240 Va.
347, 397 S.E.2d 810 (1990) (physician’s act of fondling patient’s breasts and
making improper comments during what was supposed to be a routine breast
examination occurred during the delivery of professional services). Here, Mock
went to Dr. Allen complaining of pain to his neck, back, left hip/groin area,
and left leg. It was incumbent upon Dr. Allen to examine the painful areas
thoroughly in order to diagnose Mock’s complaint. Moreover, Dr. Allen testified
that he wanted to rule out radiculopathy, a nerve condition originating in the
spinal area and extending through the groin and into the leg. Given these
circumstances, Dr. Allen’s alleged sexual misconduct occurred while he was
providing professional services and/or treating Mock’s physical injuries.
Accordingly, the misconduct Mock accuses Dr. Allen of falls within the ambit of
the AMLA.

II.

Mock next argues that the trial court erred in ruling that evidence of other
similar wrongful acts allegedly committed by Dr. Allen against five other male
patients was inadmissible.

As noted above, the trial court properly determined that Mock’s action
against Dr. Allen was governed by the provisions of the AMLA. Therefore, ?
6-5-551, Ala. Code 1975, was applicable. That section provides, in pertinent
part:

In Ex parte Northport Health Service, Inc., 682 So. 2d 52 (Ala. 1996),
the administrator of a deceased nursing home resident’s estate sued the nursing
home, claiming that the facility’s employees had abused, mistreated, or
neglected the resident. The administrator sought discovery of “similar acts” of
abuse. Following the trial court’s order finding that information discoverable,
the nursing home petitioned this Court for a writ of mandamus. This Court held
that the AMLA barred a plaintiff’s discovery of “similar acts” or “pattern and
practice” evidence, and ordered that the trial court vacate its previous
discovery order. 682 So.2d at 55-56. Likewise, in Ex parte Golden, 628
So. 2d 496 (Ala. 1993), the plaintiff sued a dentist, claiming that the dentist
had engaged in a scheme to defraud his patients. The plaintiff sought discovery
of similar acts the dentist had allegedly engaged in with other patients. The
trial court denied the discovery, and the plaintiff petitioned this Court for a
writ of mandamus. We denied the petition, holding that contrary to the
plaintiff’s claims, her case was governed by the AMLA and, thus, that discovery
of such evidence was prohibited by ? 6-5-551. 628 So. 2d at 498.

Mock argues that ? 6-5-551 does not provide a blanket prohibition on the
discovery or admissibility of “similar acts” evidence. He points to our decision
in Ex parte McCollough, 747 So. 2d 887 (Ala. 1999), as support for his
contention. Our decision in McCollough, however, is factually
distinguishable from the instant case. McCollough stands merely for the
proposition that evidence of other acts similar to those alleged in the
complaint in that case was discoverable, not that it was admissible. The fact
that evidence is discoverable does not mean that it will be admissible at trial.
See Rule 26(b)(1), Ala.R.Civ.P. (“It is not ground for objection that the
information sought will be inadmissible at the trial if the information sought
appears reasonably calculated to lead to the discovery of admissible evidence.”)
Moreover, in a recent decision, this Court implicitly recognized the
inadmissibility of such evidence at trial. In Crowne Investments, Inc. v.
Raid, 740 So.2d 400 (Ala. 1999), the granddaughter of a deceased nursing
home resident sued the nursing home, claiming that the facility’s breach of the
applicable standard of care had resulted in her grandfather’s death. At trial,
the judge admitted testimony regarding other acts and omissions by the nursing
home. The jury returned a verdict in favor of the granddaughter. On appeal, the
nursing home argued that the evidence of other acts and omissions was
inadmissible under ? 6-5-551. We rejected the nursing home’s claim, but
implicitly recognized that such evidence was normally inadmissible, stating: “A
party who opens the door to an otherwise objectionable area of testimony cannot
claim error when the opposing party introduces similar evidence.” 740 So. 2d at
408. Thus, because the action against Dr. Allen was governed by the AMLA, which
includes the provisions of ? 6-5-551, Mock was entitled to introduce only
evidence concerning Dr. Allen’s alleged wrongful acts against him personally;
evidence of other wrongful acts allegedly committed by Dr. Allen was properly
excluded.

III.

Mock also argues that the trial court erred by refusing to allow him to offer
evidence concerning Dr. Allen’s alleged sexual preference.

An examination of the record reveals that at trial Mock sought to read from
Dr. Allen’s deposition the question, “Are you a homosexual?” and also to read
Dr. Allen’s denial. Mock then wanted to offer testimony from Dr. Alan Prince to
the effect that Dr. Allen had once told him that he had engaged in a homosexual
relationship. Mock’s argument to the trial court appeared to be that evidence of
Dr. Allen’s homosexuality would establish Dr. Allen’s motive to molest male
patients. Mock argued to the trial court, “the fact that [Dr. Allen] is a
homosexual, which is what we intend to prove through this next witness, would be
of consequence to the determination in this action of whether or not the doctor
sexually assaulted Mr. Mock.” (R. 165.) The trial court determined that the
evidence was not relevant at that time, and prohibited Mock’s attorney from
eliciting this testimony from Dr. Prince.

The determination of whether evidence is relevant lies within the sound
discretion of the trial judge. Charles Gamble, McElroy’s Alabama
Evidence, ? 21.01(6) (5th ed. 1996). Furthermore, “most courts today would
reject, or at least closely scrutinize, an argument for relevance whose major
premise was crudely couched in terms of one of these suspect classifications
[such as race, religion, sex, or wealth].” 22 Wright & Graham, Federal
Practice and Procedure, Evidence: ? 5179 (1978). Moreover, some courts have
begun to add sexual preference or gender orientation to the list of suspect
categories. Id. (1999 Supp.) Most cases that have addressed the
admissibility of evidence of a defendant’s homosexuality have involved criminal
prosecutions. A few decisions, however, have involved civil actions. In Cohn
v. Papke, 655 F.2d 191 (9th Cir. 1981), the court held:

“This evidence [of the plaintiff’s alleged homosexuality] was of very slight
probative value, and the tendency for prejudice was great. There was a clear
potential that the jury may have been unfairly influenced by whatever biases and
stereotypes they might hold with regard to homosexuals …. [B]ecause the
probative value of this evidence was so small, the possibility of unfair
prejudice substantially outweighed the value of this evidence.”

655 F.2d at 194-95. The United States Court of Appeals for the Tenth Circuit
likewise recognized the inherent prejudicial nature of this type of evidence in
Lockard v. Pizza Hut, Inc., 162 F.3d 1062 (10th Cir. 1998), a decision
involving a Title VII sexual- harassment claim. Although declining to grant a
new trial on the basis that evidence of a restaurant manager’s homosexuality had
been improperly admitted, the court noted: “The suggestion that Mr. Jack’s
homosexuality would make him less sensitive to Ms. Lockard’s complaints seems to
us little more than an attempt to further an unfounded stereotype. Moreover, the
unfair prejudice that necessarily accompanies such evidence mandates its
exclusion.” 162 F.3d at 1076.

Here, the trial court acted within its discretion in barring testimony
concerning Dr. Allen’s alleged sexual preference. Evidence that Dr. Allen might
have had a homosexual relationship at some point in his past would not establish
that he would be likely to molest his male patients. As the court did in Cohn
v. Papke, we hold that the trial court properly reasoned that introduction
of this evidence would have focused the jury’s attention away from what actually
happened between Dr. Allen and Mock, and instead, on Dr. Allen’s sexual
orientation. Whatever the probative value of this evidence, it was substantially
outweighed by the danger of unfair prejudice. Accordingly, the trial court
properly excluded that evidence.

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

Hooper, C.J., and Maddox, Houston, Cook, and Johnstone, JJ., concur.

See, Lyons, and England, JJ., dissent.

SEE, Justice (dissenting).

The dispositive issue is whether the Alabama Medical Liability Act of 1987,
Ala. Code 1975, ? 6-5-540 et seq. (the “AMLA”), applies to this action against a
physician. The plaintiff alleges that the defendant, Dr. Robert Allen,
improperly “fondled, stroked, caressed or otherwise touched” the plaintiff’s
genitals during medical examinations. Dr. Allen testified that there was no
medical reason for him to engage in the conduct of which he is accused. As to
one of the alleged incidents, Dr. Allen testified that he did not remember
whether he touched the plaintiff’s genitals, but that if he did it was medically
appropriate. As to all the other alleged incidents, Dr. Allen stated that there
was no medical reason for him to stroke the plaintiff’s genitals and that he did
not do so.

The trial court held that the AMLA applies to this case and that that Act
bars the plaintiff from presenting evidence indicating that Dr. Allen had
fondled or stroked the genitals of other male patients. The trial court refused
to allow Mock to introduce the testimony of five other patients. The jury found
for Dr. Allen, and the court entered a judgment on the verdict. The majority
affirms. I do not believe the AMLA applies to all of the alleged incidents;
therefore, I must respectfully dissent.

Shellie Mock, Jr., was injured in an automobile accident in 1991. In November
1991, he became a patient of Dr. Allen, a neurologist. Dr. Allen examined or
treated Mock several times in November and December 1991. In October 1993, Mock
filed this action against Dr. Allen, alleging that Dr. Allen had committed the
tort of battery against him when, he said, Dr. Allen “fondled, stroked, caressed
or otherwise touched [Mock’s] genitals without [Mock’s] consent and with no
medical reason.”⁽¹⁾ Five
years later, in 1998, Dr. Allen, for the first time, asserted that the AMLA
applied to this case. Dr. Allen filed a motion in limine, asking the trial court
to exclude all evidence of similar acts involving other patients, on the ground
that such evidence would be inadmissible, pursuant to ? 6-5-551.⁽²⁾ Mock
opposed the motion, arguing that the AMLA did not apply to this case, because,
he argued, Dr. Allen’s alleged improper touching of Mock’s genitals was outside
the scope of the medical treatment. The trial court granted Dr. Allen’s motion
and excluded the testimony of five other male patients of Dr. Allen, each of
whom would have testified that Dr. Allen had improperly stroked his penis during
physical examinations or treatment.⁽³⁾ Thus,
the trial was essentially a credibility contest between Mock — who testified
that Dr. Allen on several occasions improperly touched Mock’s genitals — and
Dr. Allen — who claimed he did not. The jury, apparently finding Dr. Allen a
more credible witness than Mock, returned a verdict in favor of Dr. Allen, and
the trial court entered a judgment on that verdict.

II.

Mock argues that the AMLA does not apply to his action against Dr. Allen and,
therefore, that the trial court erred in excluding the other five patients’
testimony that Dr. Allen improperly touched their genitals. Subject to one
qualification, I agree.

The Legislature declared that it enacted the AMLA in response to increasing
health-care costs caused by “the increasing threat of legal actions for alleged
medical injury.” Ala. Code 1975, ? 6-5-540. The AMLA applies to actions against
a health-care provider alleging a “breach of the standard of care.” Ala. Code
1975, ? 6-5-540 et seq. A breach of the standard of care is the “fail[ure] 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.” ? 6-5-548. Thus, the AMLA applies to conduct that is,
or that is reasonably related to, the provision of health-care services
allegedly resulting in a medical injury. Just as the Alabama Legal Services
Liability Act does not apply to every action against a person who is a lawyer,
see Cunningham v. Langston, Frazer, Sweet & Freese, P.A., 727 So. 2d
800 (Ala. 1999), the AMLA does not apply to every action against a person who is
a doctor, see Thomasson v. Diethelm, 547 So. 2d 397 (Ala. 1985). It does
not, I believe, apply to an action alleging sexual molestation, where the
health-care provider concedes that the acts complained of were not medically
relevant. Although Mock’s claims arise out of conduct that took place at a time
when there was a doctor-patient relationship for the purpose of examination and
treatment, see Thomasson, that fact alone cannot subject to the
provisions of the AMLA all conduct by the doctor, however unrelated to the
provision of medical services. Mock alleges that Dr. Allen, during otherwise
legitimate medical examinations, did something that Dr. Allen concedes would
have been outside the scope of legitimate medical treatment.⁽⁴⁾ At
trial, Dr. Allen testified that, with one possible exception, he had no reason
to, and did not, examine Mock’s genitals.

The majority concludes that the AMLA applies to Mock’s claims against Dr.
Allen. As to the alleged incident that Dr. Allen testified might have involved a
medically appropriate examination of Mock’s genitals, I agree. However, as to
the other alleged incidents, I disagree. Dr. Allen testified that, as to those
alleged incidents, there was no medical reason for him to touch Mock’s genitals,
and he has flatly denied doing so. Dr. Allen should not be able to avail himself
of the protections of the AMLA with respect to these alleged incidents, which by
Dr. Allen’s own admission do not involve an alleged breach of the standard of
care to be followed in rendering medical treatment.

III.

The trial court excluded the testimony of Dr. Allen’s other patients because
the AMLA prohibits the introduction of evidence concerning acts other than the
one “alleged by [the] plaintiff to render the health care provider liable to
[him].” Ala. Code 1975, ? 6-5-551. Had the trial court not incorrectly concluded
that the AMLA applied, that court would have had the discretion to admit or to
exclude the proffered evidence, see, e.g., Bama’s Best Party Sales, Inc. v.
Tupperware, U.S., Inc., 723 So. 2d 29, 32 (Ala. 1998), except as to the
alleged incident regarding which Dr. Allen testified that he might have examined
Mock’s genitals for medical reasons. I would reverse the judgment in favor of
Dr. Allen and remand this case for a new trial on the alleged incidents of
battery regarding which Dr. Allen has denied touching Mock’s genitals; the AMLA
would not apply to that trial. Accordingly, I dissent from the affirmance of the
judgment in favor of Dr. Allen. Because of the implications of the majority’s
affirmance–an affirmance based on the conclusion that the AMLA applies to a
claim against a physician even if the allegation of liability is based on an act
or omission that is not even arguably a part of the physician’s provision of
health-care services,⁽⁵⁾ I
believe the trial court’s judgment should be reversed and the case remanded.

Lyons and England, JJ., concur.

1. ¹Mock also sued Southeast Alabama Medical
Center (“SAMC”), where he had been a patient under Dr. Allen’s care for a few
days. The trial court entered a summary judgment for SAMC; that summary judgment
is not at issue in this appeal.

2. ²Ala. Code 1975, ? 6-5-551, provides:

“In any action for injury, damages, or wrongful death, whether in contract or
in tort, against a health care provider for breach of the standard of care the
plaintiff shall include in the complaint filed in the action a detailed
specification and factual description of each act and omission alleged by
plaintiff to render the health care provider liable to plaintiff. The plaintiff
shall amend his complaint timely upon ascertainment of new or different acts or
omissions upon which his claim is based; provided, however, that any such
amendment must be made at least 90 days before trial. Plaintiff shall be
prohibited from conducting discovery with regard to any other act or omission or
from introducing at trial evidence of any other act or omission. Any
complaint which fails to include such detailed specification and factual
description of each act and omission shall be subject to dismissal for failure
to state a claim upon which relief can be granted.”

(Emphasis added.)

3. ³Three of the witnesses had been minors when
they were Dr. Allen’s patients. One of the adult witnesses, who went to Dr.
Allen seeking treatment for headaches, would have testified that “[o]n at least
four or more occasions, Dr. Allen masturbated [him] until he ejaculated.”
Another would have testified that, although he had no complaints about his
prostate, rectum, or groin, Dr. Allen “checked” his rectum on two occasions, and
that, on a third visit, Dr. Allen rubbed lotion on his thighs and then “grabbed”
his penis, at which time, he said, he looked at Dr. Allen with incredulity and
Dr. Allen abruptly left the room. At least two of the witnesses would have
testified that Dr. Allen did not wear gloves when he stroked their genitals.

4. ⁴Dr. Allen testified in his deposition that
“there was no medical or neurological reason that I would have needed to fondle,
stroke, or caress Mr. Mock’s genitals during the period of time that I saw him from November 19 through December 10, 1991.” He further
testified, “There are situations under which a physician may need to stroke, in
a medical sense, not in a sexual sense, stroke a person’s genitals for purpose
of other examination; within the context of my dealing with Mr. Mock, there is
no reason that I am aware of that I would have needed to have stroked his
genitals, and I did not do that.”

5. ⁵Under the principle implicit in the
majority’s decision, were a doctor to shoot a patient, the AMLA would apply if
that shooting took place during a medical examination.