MEDICAL LIABILITY - EX PARTE VANDERWALL

Ex parte Vanderwall, [Ms. 1130036, Sept. 30, 2015] __ So.3d __ (Ala. 2015). A complaint alleging sexual misconduct by a health care provider at the time and place of providing health care services is not governed by the Alabama Medical Liability Act. The Court overrules two earlier cases, Mock v. Allen, 783 So. 2d 828 (Ala. 2000); and O’Rear v. B.H., 69 So. 3d 106 (Ala. 2011). Those cases held that if the alleged acts occurred “within ‘the doctor’s office or hospital’ and ... ‘while [the defendant] was providing professional services’” the AMLA applied. Here, however, the Court holds that the AMLA applies “only to actions in which the alleged injury occurred because of medical treatment.” (Emphasis in original.) Sexual molestation of a patient is not a matter of medical injury subject to the AMLA. Here, the defendant was a physical therapist treating the plaintiff for a back injury but allegedly fondled her breasts and genitals. The plaintiff did not ask the Court to hold that a physical therapist is not a “health care provider,” but only argued that, assuming the defendant was a health care provider, the acts alleged were outside the scope of the provisions of the AMLA. The result of the holding is that the plaintiff will be allowed to conduct discovery as to prior allegations against Vanderwall of similar sexual molestation.