author: CRAWLEY, Judge. PITTMAN, Judge,

text:
    Sharon HEATH and Thurman Heath v. HealthSOUTH MEDICAL CENTER.
    2000807.
    Court of Civil Appeals of Alabama.
    May 3, 2002.

      D. Leigh Love of Love, Love & Love, P.C., Talladega, for appellants.
    Joe L. Leak and Robert G. Boliek, Jr., of Friedman, Leak & Bloom, P.C., Birmingham, for appellee.
   CRAWLEY, Judge.

Sharon Heath and Thurman Heath, husband and wife, appeal from a summary judgment entered against them on their claims against HealthSouth Medical Center stemming from a fall Mrs. Heath suffered while she was being treated as a patient in that facility. We reverse and remand.

Heath had been admitted to the Health-South facility for back surgery. After her surgery, which was successfully performed, Heath was transferred to the rehabilitation section of the facility. Immediately before her transfer and before she left the surgical ward on November 21, 1999, she was given 5 milligrams (“mg”) Valium, 10 mg. morphine, and a Percodan tablet. Shortly after arriving at the rehabilitative floor of the facility, she received a second Percodan tablet. The Percodan was supposed to be given at four-hour intervals, but Heath received the second Percodan tablet 2 hours and 45 minutes after she had taken the first one. In addition, Heath did not receive a scheduled dose of her insulin. Heath's assigned nurse at the rehabilitative unit, Kathy Reid, an L.P.N. and a new employee working her first day on the rehabilitation unit, raised two side rails (one rail on each side of the bed) of the four side rails on Heath’s bed and left her with a buzzer near her hand.

Heath testified in her deposition that, shortly after she received the second Per-codan tablet, she needed to use the bathroom, and she rang the buzzer to summon a nurse. Heath said that after she rang the buzzer, she waited “anywhere from 30 minutes to an hour” for a nurse to come and assist her to the bathroom. The evidence as to whether the nurses were aware of the activation of Heath’s buzzer or whether the buzzer was actually working is disputed. Heath testified that, although she knew that her doctor had instructed her not to get up from her bed without the assistance of a nurse, she was unable to wait any longer and she began to climb out of bed by herself. Heath said that when she put weight on her left foot, it gave way and she fell, breaking her left hip. She immediately underwent surgical open reduction and internal fixation of the left intertrochanteric fracture.

On March 20, 2000, the Heaths sued HealthSouth, and various fictitious defendants, alleging that the defendants had breached the standard of care in providing care and treatment for Heath while she was a patient in the facility. Specifically, they alleged that the defendants (1) had failed to identify Heath as a patient “at risk” for falling, (2) had failed to properly supervise and monitor Heath while she was being treated in the facility, (3) had failed to train its nursing staff on safety issues, and (4) had failed to respond to Heath’s calls for assistance.

On February 20, 2001, HealthSouth moved for a summary judgment, stating as grounds that no genuine issue of material fact existed as to the defendants’ breach of the standard of care. HealthSouth supported its motion with the affidavit of Lola Patterson, R.N. On March 1, 2001, the Heaths responded to HealthSouth’s summary-judgment motion with the affidavit testimony of Julie Akin, R.N. On March 2, 2001, HealthSouth submitted a supplemental affidavit of Ms. Patterson that was substantially the same as the initial affidavit, along with a certified copy of Heath’s medical records from her November 1999 hospital stay at HealthSouth. Shortly thereafter, HealthSouth moved to strike Ms. Akin’s affidavit, contending that she was not a qualified expert pursuant to § 6-5-548, Ala.Code 1975, which requires that the health-care expert have practiced in the same discipline as the health-care-provider defendant “during the year preceding the date that the alleged breach of standard of care occurred.” § 6-5-548(b)(3). The trial court determined that Ms. AMn did not meet those requirements, struck her affidavit, and granted Health-South’s summary-judgment motion.

The Heaths filed a postjudgmeht motion, which the trial court denied. Thereafter, the Heaths appealed to the Supreme Court; that court transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975. On appeal, the Heaths argue that the trial court erred by striking the testimony of their expert, Julie Akin, R.N., on the grounds that it did not comply with § 6-5-548. They also argue that expert testimony was not necessary in this case to establish the applicable standard of care and the breach of that standard.

We review a summary judgment de novo; we apply the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). The court must view the evidence in a light most favorable to the nonmoving party and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990). If the mov-ant meets this burden, “the burden then shifts to the nonmovant to rebut the mov-ant’s prima facie showing by ‘substantial evidence.’ ” Lee, 592 So.2d at 1038 (footnote omitted). “[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see Ala.Code 1975, § 12-21-12(d). See Ex parte General Motors Corp., 769 So.2d 903 (Ala.1999), and Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (Ala.1989), for further discussion of the application of the summary-judgment standard.

HealthSouth supported its motion for a summary judgment with the affidavit of a registered nurse, Lola Patterson, who had worked for 20 years in patient care, and then in 1987 became an educator in nursing-staff development at the University of Alabama in Birmingham. Ms. Patterson opined in her affidavit that neither Health-South nor its employees had breached a standard of care in treating Heath. She further stated that it was her opinion that Heath had put herself at risk by getting out of bed unassisted when her doctors had advised her against doing so. In response to the defendants’ summary-judgment motion, the Heaths filed a responsive motion supported with the affidavit, as well as the deposition testimony of Julie Akin, a registered nurse who is presently employed as a workers’ compensation consultant. On March 5, 2001, HealthSouth moved to strike the affidavit and deposition testimony of Julie Akin, R.N., stating as grounds that Akin was not a “similarly situated health care provider” who had “practiced in the same discipline or school of practice during the year preceding the date that the alleged breach of the standard of care occurred.” § 6-5-548, Ala. Code 1975.

The trial court entered a summary judgment for HealthSouth. In its judgment the trial court stated, in pertinent part:

“In response to the Defendant’s motion, the Plaintiffs offer in rebuttal the testimony of their expert, Julie Akin, R.N. While Ms. Akin may, in fact, counter the Defendant’s proposition, the Defendant moves to strike her testimony under the contention that Julie Akin is not a qualified expert under the provisions of § 6-5-548, Ala.Code 1975. Section 6-5-548, in pertinent part, requires that the expert have practiced in the same discipline as the health care provider ‘during the year preceding the date that the alleged breach of standard of care occurred.’ It is undisputed that the alleged breach occurred on November 21, 1999; therefore [pursuant to the terms of the statute Ms. Akin is required to have been engaged in nursing practice] between November 21, 1998, and November 21, 1999. In Ms. Akin’s resumé attached to her affidavit it appears that she worked as a workers’ compensation Case Manager from April 1998, to July 2000. Moreover, in her deposition she describes her duties as follows:
“ ‘Q: Now, during the time you worked for Directions [Management Company] and Genex, I think you indicated that those were full-time employments there?
“ ‘A: Correct.
“ ‘Q: Did you do any flex-time or part-time nursing while you were working there?
“ ‘A: No.
“ ‘Q: How would you describe — I mean, I have some familiarity with work as a work. comp, case manager, but tell us in your own words what — how you would describe that job when people ask you?
“ ‘A: Basically what my job entails is I deal with the injured employee, and I usually follow them throughout their course of treatment. I work with the employee, the employer, the physician, physical therapy if there is any ordered. And basically my responsibility is to ensure that all the patient’s needs are met in a timely manner and if they have any questions, they are addressed.
“And I’m kind of like a middle person, I report back to the insurance company, my company, which would have been Directions or Genex and I also contact the employee’s attorney if they have one. So, I’m pretty much responsible to a lot of different people. But my goal is to get the patient back to work in a timely manner and in a safe manner.
“ ‘Q: Would it be true that you weren’t providing any actual nursing services to the employees in your capacity as a work comp case manager?
“ ‘A: [What do] you mean by nursing services?
“ ‘Q: I mean hands-on treatment such as what you’re doing now a[t] [Druid City Hospital] or what you’ve done in treatment of patients at hospital facilities.
“ ‘A. Right. I did not do direct patient care, but I reviewed records to make sure that care was given as it should have been or if there was anything missed, you know, I made recommendations and so forth.’
“Based on her testimony, it seems clear to the Court that Ms. Akin was not engaged in actual hands-on care and treatment of patients as a registered nurse during the year preceding the alleged breach (November 21, 1999). The Plaintiffs cite the case of Dowdy v. Lewis, 612 So.2d 1149 (Ala.1992), in support of their position. In Dowdy, the Court held that expert witnesses who possessed post-graduate degrees in nursing and who were engaged in the teaching of nursing, qualified as similarly situated health care providers within the meaning of the Alabama Medical Liability Act, reasoning that although the experts had not performed acts related to the care of persons hospitalized, they devoted their full time efforts to the teaching of nursing, which established their competence to testify because the witnesses made it their business to determine what was on the cutting edge of the profession by continual study of the modern trends in nursing. In the case at bar, there is no evidence before the Court that Ms. Akin was engaged in any teaching or other instructive activity. In fact, in gathering from her testimony, her duties as a workers’ compensation Case Manager mainly consisted of arranging and scheduling treatment with various health care providers for employees who have been injured on the job.
“Therefore, the Court must conclude based upon the pleadings and evidence submitted that Ms. Akin does not qualify as a similarly situated health care provider under the provisions set forth in § 6-5-548, Ala.Code 1975. Accordingly, the Defendants’ Motion to Strike the affidavit and testimony of the Plaintiffs’ witness, Julie Akin, R.N., is hereby GRANTED. The Court further finds and determines that the Plaintiffs, Sharon and Thurman Heath, without additional expert testimony, have failed to meet their burden of proving by substantial evidence any breach of the applicable standard of care, and therefore, the Defendant’s Motion for Summary Judgment is due to be and is hereby GRANTED.”

Citing Swendsen v. Gross, 530 So.2d 764 (Ala.1988), our supreme court held: “In a medical-malpractice action, once the defendant health-care provider offers in his, her, or its behalf expert testimony that makes a prima facie showing of a lack of negligence, the health-care provider is entitled to a summary judgment, unless the plaintiff produces substantial evidence indicating negligence.” Anderson v. Alabama Reference Labs., 778 So.2d 806, 810 (Ala.2000); see also Sledge v. Colbert County Northwest Alabama Healthcare Auth., 669 So.2d 182 (Ala.Civ.App.1995); Ex parte Waddail, 827 So.2d 789 (Ala.2001). Relying on Swendsen, the supreme court held that even a party’s conclusory affidavits are sufficient to shift the burden of proof to the nonmoving party on a summary-judgment motion. Anderson, 778 So.2d at 811.

Generally, in a medical-malpractice action, the plaintiff is required tó produce expert medical testimony to establish the applicable standard of care and a breach of that standard of care, in order to establish a prima facie case. Allred v. Shirley, 598 So.2d 1347, 1350 (Ala.1992). However, an exception to this rule arises when the circumstances are such that the lack of care or skill are so obvious that any layperson with common knowledge and experience could comprehend it. Tuscaloosa Orthopedic Appliance Co. v. Wyatt, 460 So.2d 156, 161 (Ala.1984). Our supreme court has recognized the following situations as falling within this narrow exception: (1) where a foreign instrumentality is located in the plaintiffs body after surgery; (2) where the injury sustained is completely unrelated to the condition for which the plaintiff sought medical treatment; (3) where the plaintiff relies upon a recognized standard or authoritative medical text or treatise to prove what is or is not proper practice; and (4) where the plaintiff is himself or herself a medical expert qualified pursuant to the Alabama Medical Liability Act (“AMLA”) to evaluate the doctor’s allegedly negligent conduct. The Heaths contend that a layperson with ordinary life experience would be able to comprehend the breach of care Heath alleges occurred.

In the present case, we conclude that what constitutes a patient “at risk” for falling and what are the proper monitoring standards, precautions, and procedures to follow when caring for a patient “at risk” for falling are both questions to be answered by experts in the field of nursing care. We, therefore, hold that § 6-5-548 requires expert testimony to demonstrate how HealthSouth breached its duty with respect to Heath’s allegation that she was a patient “at risk” for falling and how such a breach, if it occurred, caused or contributed to Heath’s injury.

We acknowledge that expert testimony sufficient to satisfy a plaintiffs burden of establishing the standard of care and a breach of that standard may come from the defendant health-care provider or its employees. See Tant v. Women’s Clinic, 382 So.2d 1120 (Ala.1980). The record contains the deposition testimony of two HealthSouth employees — Mary Ruth Lavender, Reid’s supervisor and the charge nurse on the floor where Heath was a patient, and Linda Sue Stanley, Lavender’s nursing supervisor — submitted in support of HealthSouth’s motion for a summary judgment. The testimony of those two witnesses tended to show that Heath, upon her admission to Health-South, was classified as a patient “at risk” for falling. Taken together, the testimony of Lavender and Stanley indicates that Heath’s at-risk classification was based upon her preadmission assessment, which took into account her past medical history and her current physical condition. Although Lavender and Stanley agreed that Heath was at risk for falling, they disagreed about the implications of that designation. Lavender testified that an at-risk patient should have all four rails of her hospital bed raised, but that it is within the attending nurse’s discretion to raise only two bed rails if the patient so requests and the nurse either determines that that practice is safe or asks a family member to stay with the patient. Lavender testified that neither she nor Reid asked one of Heath’s family members to stay with Heath. Stanley testified that an at-risk patient need have only two bed rails elevated. We conclude that the testimony of Lavender and Stanley establishes a prima facie showing that HealthSouth did not breach the applicable standard of care as to the elevation of bed rails, and Heath did not rebut that showing.

We also hold, however, that no expert testimony was required to establish that HealthSouth breached its duty of care with respect to Heath’s allegation that HealthSouth’s nursing staff failed to respond to her calls for assistance in walking to the bathroom and that, as a proximate consequence of that failure, Heath attempted to walk to the bathroom by herself, fell, and was injured. See Newhall v. Central Vermont Hosp., Inc., 133 Vt. 572, 349 A.2d 890 (1975).

In Newhall, the Vermont Supreme Court was faced with facts almost identical to the facts in the instant case. There, a hospital patient who had waited a “long time” for the nursing staff to respond to her call fight attempted to walk to the bathroom without assistance and fell. The Vermont court held that the patient was not required to present expert testimony as to the unreasonableness of the delay in answering her call fight because the alleged lack of care related to matters that were reasonably within the knowledge and experience of the average layperson. The court stated:

“We perceive nothing technical or beyond the common knowledge of a layperson in the essential function of supplying a bedpan with reasonable expedition to a bedpatient in a hospital. Ministering to the fundamental needs of such a patient is, as plaintiff argues, essentially routine care, ministerial and not technical. It is well within the applicable rule requiring ‘such reasonable care as the patient’s known (or should be known) condition may require or demand.’ Here the evidence showed a patient relatively immobile, previously supplied with a bedpan, and under sedative medication. No special skill is required to supply a bedpan when needed; no special expertise is required to foresee the possibility of a fall resulting from the patient’s attempt to supply the deficiency in care.”

133 Vt. at 574, 349 A.2d at 892 (citations omitted) (quoting Kastler v. Iowa Methodist Hosp., 193 N.W.2d 98 (Iowa 1971), and Restatement (Second) of Torts § 283 (1965)). See also Veesart v. Community Hosp. Ass’n, 211 Kan. 896, 508 P.2d 506 (1973) (holding that a patient who broke his leg in a fall while going from his hospital bed to the bathroom was not required to present expert testimony regarding the standard of care); Rewis v. Grand Strand Gen. Hosp., 290 S.C. 40, 42, 348 S.E.2d 173, 174 (1986) (holding that “since the matter of a fall is not a technical one outside the comprehension of a layman,” “[t]he common knowledge or experience of the jurors was sufficient to enable them to infer a lack of proper care and the causal link to [the plaintiffs] fall”); McGraw v. St. Joseph’s Hosp., 200 W.Va. 114, 120, 488 S.E.2d 389, 395 (1997) surveying cases involving hospital-fall incidents and concluding that in “cases addressing hospital fall incidents ... a majority of jurisdictions do not require expert testimony”). See generally Annotation, Necessity of Expert Evidence to Support Action Against Hospital for Injury to or Death of Patient, 40 A.L.R.3d 515, § 10 (1971).

In McGraw v. St. Joseph’s Hospital, 200 W.Va. at 121, 488 S.E.2d at 396, the Supreme Court of Appeals of West Virginia, quoting a Wisconsin decision, Cramer v. Theda Clark Memorial Hospital, 45 Wis.2d 147, 172 N.W.2d 427, 428 (1969), “articulated the rationale used by jurisdictions that generally do not require expert testimony in hospital fall cases”:

“ ‘Courts generally make a distinction between medical care and custodial care or routine hospital care. The general rule is that a hospital must in the care of its patients exercise such ordinary care and attention for their safety as their mental and physical condition, known or should have been known, may require .... If the patient requires professional nursing or professional hospital care, then expert testimony as to the standard of that type of care is necessary. ... But it does not follow that the standard of all care and attention rendered by nurses or by a hospital to its patients necessarily require[s] proof by expert testimony. The standard of non-medical, administrative, ministerial or routine care in a hospital need not be established by expert testimony because the jury is competent from its own experience to determine and apply such a reasonable-care standard.’ ”

McGraw, 200 W.Va. at 121, 488 S.E.2d at 396 (emphasis added in McGraw).

We do not believe the foregoing authorities are contrary to existing Alabama law. Our supreme court has decided two cases with facts similar to the facts in this case, i.e., a patient was injured in a fall and sued the health-care provider. See Walker v. Southeast Alabama Med. Ctr., 545 So.2d 769 (Ala.1989), and Loeb v. Cappelluzzo, 583 So.2d 1323 (Ala.1991). In Walker, the supreme court held that a health-care provider could be held liable for a patient’s fall when the patient got out of bed unassisted. In Walker, the doctor had left specific written orders that the side rails on the patient’s bed were to be kept in the raised position. The facts were undisputed in Walker that when the night nurse gave Ms. Walker a injection of pain medication, she left the bed rail in the lowered position, against the doctor’s express orders. The supreme court concluded that the circumstances presented in Walker fell within the limited exception to the expert rule: “The breach of care alleged by the Walkers — that the bedrail was left in the down position contrary to the orders of Mrs. Walker’s doctor — is so apparent as to be understood by a layman.” Walker, 545 So.2d at 771.

In Loeb, a 73-year-old patient sued her physician and his staff member under the AMLA for an injury the patient sustained when she fell from a swivel stool in an examination room. In Loeb, the patient alleged that the staff member showed her into an examination room and closed the door, leaving her to wait for the physician without first assisting her up onto the examination table. No chair was available; the only items of furniture in the examination room were a swivel stool on which the doctor customarily sat, a small wooden step stool, and an examination table. When the physician entered the room, the patient rose to greet him and fell to the floor.

At trial, the patient, who was unable to qualify her expert witnesses under § 6-5-548, argued that the AMLA did not apply because, she said, the case did not involve the care or treatment that a physician gives to a patient. Instead, the patient maintained, the standard of care was the same duty that any premises owner owes to an invitee. Stating that the parties had agreed to try the case under the AMLA— and the court’s pretrial order had restricted the patient to that theory — our supreme court affirmed a summary judgment in favor of the physician because, it held, expert testimony was required to establish a breach of the standard of care.

Neither Walker nor Loeb dictates that expert testimony is always required to establish the standard of care when a patient suffers a fall in a medical facility. We think the circumstances of Heath’s injury, insofar as that injury was alleged to have been proximately caused by the defendants’ failure to answer Heath’s calls for assistance, come within the comprehension of the ordinary layperson and qualify as an exception to the expert-testimony rule of the AMLA.

The judgment of the circuit court is reversed, and the cause is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

YATES, P.J., concurs.

MURDOCK, J., concurs in the result.

THOMPSON and PITTMAN, JJ., dissent.

PITTMAN, Judge,

dissenting.

Because I would affirm the trial court’s summary judgment for HealthSouth, I must respectfully dissent. Generally, to establish a prima facie case in a medical-malpractice case, the plaintiff is required to produce expert medical testimony to establish the applicable standard of care and a breach of that standard of care. See Allred v. Shirley, 598 So.2d 1347 (Ala.1992). The exception to this rule arises when the circumstances are such that the lack of care is so obvious that any layperson with common knowledge and experience can understand it. See Tuscaloosa Orthopedic Appliance Co. v. Wyatt, 460 So.2d 156 (Ala.1984).

Our supreme court has recognized the following as falling within the exception: (1) where a foreign instrumentality is located in the plaintiffs body after surgery; (2) where the injury sustained is completely unrelated to the condition for which the plaintiff sought medical treatment; (3) where the plaintiff relies on a standard or authoritative medical treatise to prove what is or is not proper practice; and (4) where the plaintiff is himself or herself a medical expert qualified pursuant to the Alabama Medical Liability Act to evaluate the allegedly negligent conduct. Clearly, the Heaths’ action does not fall within any one of these situations. See Anderson v. Alabama Reference Labs., 778 So.2d 806 (Ala.2000).

The Heaths contend that their claim falls within the fourth exception. They argue that a layperson with ordinary life experience would be able to comprehend the alleged breach of care suffered by Ms. Heath. I disagree. What are the factors that make certain patients “at risk” for falling, what are the proper monitoring standards for the patients, and what are the proper precautions and procedures to follow when treating patients at risk for falling are all questions to be answered by experts in the field of nursing care.

The trial court determined that the expert offered by the Heaths, Ms. Akin, was not qualified under § 6-5-548, Ala.Code 1975. It struck her affidavit. In its judgment the trial court stated:

“Based on her testimony, it seems clear to the Court that Ms. Akin was not engaged in actual hands-on care and treatment of patients as a registered nurse during the year preceding the alleged breach.... In the case at bar, there is no evidence before the Court that Ms. Akin was engaged in any teaching or other instructive activity [which would qualify her as an expert under Dowdy v. Lewis, 612 So.2d 1149 (Ala.1992)].”

I conclude that HealthSouth made a pri-ma facie showing by offering substantial evidence indicating that no genuine issue of material fact exists as to whether it breached the applicable standard of care, which breach allegedly caused Ms. Heath’s injury. The burden therefore shifted to the Heaths to create a genuine issue of material fact as to the breach of duty that caused the injury. Because I conclude that the trial court properly struck Ms. Akin’s affidavit, and that the Heaths’ claim does not fall within any of the exceptions to expert medical testimony required by § 6-5-548, Ala.Code 1975, I would affirm the trial court’s findings that the Heaths did not present substantial evidence creating a genuine issue of material fact. I would affirm the trial court’s summary judgment for HealthSouth; therefore, I dissent.

THOMPSON, J., concurs.

      . Thurman Heath’s claim is a derivative claim, alleging loss of consortium.

      . The record does not reflect the dosage in milligrams of the Percodan tablet.

      . Heath is an insulin-dependent diabetic. She has a myriad of other health problems. She is overweight at 233 pounds, she smokes 3 packs of cigarettes a day and has for 35 years, and she has arteriosclerosis, hyperli-pidemia, peripheral vascular disease, and chronic obstructive pulmonary disease.

      .Kathy Reid, L.P.N., testified in her deposition that Heath was argumentative and would not agree to having all four side rails raised.

      . As in the present case, the nurses called as witnesses by the patient had not practiced in a doctor's office during the year preceding the alleged negligence.


source: Caselaw Access Project

author: LYONS, Justice. SEE, Justice MOORE, Chief Justice

license: Public Domain

text:
    Ex parte HealthSOUTH CORPORATION d/b/a HealthSouth Lakeshore Rehabilitation Hospital. (In re Sharon Heath and Thurman Heath v. HealthSouth Medical Center).
    1011582.
    Supreme Court of Alabama.
    Nov. 27, 2002.

      Joe L. Leak and Robert G. Boliek, Jr., of Friedman, Leak & Bloom, P.C., Birmingham, for petitioner.
    D. Leigh Love, Betty C. Love, and William C. Sullivan of Love, Love & Love, P.C., Talladega, for respondents.
   LYONS, Justice.

The defendant, HealthSouth Corporation d/b/a HealthSouth Lakeshore Rehabilitation Hospital (“HealthSouth”), petitioned this Court for a writ of certiorari to review whether the Court of Civil Appeals erred in reversing the summary judgment in favor of HealthSouth and against the plaintiffs Sharon Heath and Thurman Heath. See Heath v. HealthSouth Med. Ctr., 851 So.2d 24 (Ala.Civ.App.2002). We granted certiorari review. For the reasons discussed below, we affirm the judgment of the Court of Civil Appeals.

Facts and Procedural History

We adopt the statement of facts as set forth in the Court of Civil Appeals’ opinion in Heath:

“[Sharon] Heath had been admitted to the HealthSouth facility for back surgery. After her surgery, which was successfully performed, Heath was transferred to the rehabilitation section of the facility. Immediately before her transfer and before she left the surgical ward on November 21, 1999, she was given 5 milligrams (‘mg.’) Valium, 10 mg. morphine, and a Percodan tablet. Shortly after arriving at the rehabilitative floor of the facility, she received a second Percodan tablet. The Percodan was supposed to be given at four-hour intervals, but Heath received the second Per-codan tablet 2 hours and 45 minutes after she had taken the first one. In addition, Heath did not receive a scheduled dose of her insulin. [Heath is an insulin-dependent diabetic.] Heath’s assigned nurse at the rehabilitative unit, Kathy Reid, an L.P.N. and a new employee working her first day on the rehabilitation unit, raised two side rails (one rail on each side of the bed) of the four side rails on Heath’s bed and left her with a buzzer near her hand.
“Heath testified in her deposition that, shortly after she received the second Percodan tablet, she needed to use the bathroom, and she rang the buzzer to summon a nurse. Heath said that after she rang the buzzer, she waited ‘anywhere from 30 minutes to an hour’ for a nurse to come and assist her to the bathroom. The evidence as to whether the nurses were aware of the activation of Heath’s buzzer or whether the buzzer was actually working is disputed. Heath testified that, although she knew that her doctor had instructed her not to get up from her bed without the assistance of a nurse, she was unable to wait any longer and she began to climb out of bed by herself. Heath said that when she put weight on her left foot, it gave way and she fell, breaking her left hip. She immediately underwent surgical open reduction and internal fixation of the left intertrochanteric fracture.
“On March 20, 2000, the Heaths sued HealthSouth, and various fictitious defendants, alleging that the defendants had breached the standard of care in providing care and treatment for Heath while she was a patient in the facility. Specifically, they alleged that the defendants (1) had failed to identify Heath as a patient ‘at risk’ for falling, (2) had failed to properly supervise and monitor Heath while she was being treated in the facility, (3) had failed to train its nursing staff on safety issues, and (4) had failed to respond to Heath’s calls for assistance.
“On February 20, 2001, HealthSouth moved for a summary judgment, stating as grounds that no genuine issue of material fact existed as to the defendants’ breach of the standard of care. Health-South supported its motion with the affidavit of Lola Patterson, R.N. On March 1, 2001, the Heaths responded to HealthSouth’s summary-judgment motion with the affidavit testimony of Julie Akin, R.N. On March 2, 2001, Health-South submitted a supplemental affidavit of Ms. Patterson that was substantially the same as the initial affidavit, along with a certified copy of Heath’s medical records from her November 1999 hospital stay at HealthSouth. Shortly thereafter, HealthSouth moved to strike Ms. Akin’s affidavit, contending that she was not a qualified expert pursuant to the Alabama Medical Liability Act, § 6-5-548, Ala.Code 1975, which requires that the health-care expert have practiced in the same discipline as the health-care-provider defendant ‘during the year preceding the date that the alleged breach of standard of care occurred.’ § 6 — 5—548(b)(3). The trial court determined that Ms. Akin did not meet those requirements, struck her affidavit, and granted HealthSouth’s summary-judgment motion.
“The Heaths filed a postjudgment motion, which the trial court denied.... On appeal, the Heaths arguefd] that the trial court erred by striking the testimony of their expert, Julie Akin, R.N., on the grounds that it did not comply with § 6-5-548. They also argue[d] that expert testimony was not necessary in this case to establish the applicable standard of care and the breach of that standard.”

Heath, 851 So.2d at 26-27 (footnotes omitted). The main opinion of the Court of Civil Appeals held that § 6-5-548, Ala. Code 1975, a part of the Alabama Medical Liability Act (“AMLA”), requires expert testimony to prove how HealthSouth breached its duty to Heath, who alleges she was a patient “at risk” for falling, and how this breach caused Heath’s injury. However, that opinion also held that expert testimony was not needed to prove that HealthSouth breached its duty of care to Heath when its nursing staff allegedly failed to respond to her calls for assistance, which failure proximately caused Heath’s injuries. The Court of Civil Appeals reversed the summary judgment.

Standard of Review

The principles of law applicable to the review of a motion for a summary judgment are well settled. The party moving for a summary judgment must make a showing that the evidence does not raise a genuine issue of material fact and that the movant is entitled to the judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant has made a prima facie showing that those two conditions are satisfied, the burden then shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

In reviewing a summary judgment, we apply the same standard the trial court applied. Ex parte Lumpkin, 702 So.2d 462, 465 (Ala.1997). Our review is subject to the caveat that we must review the record in a, light most favorable- to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).

Analysis

HealthSouth argues that the main opinion of the Court of Civil Appeals incorrectly held that “no expert testimony was required to establish that HealthSouth breached its duty of care with respect to Heath’s allegation that HealthSouth’s nursing staff failed to respond to her calls for assistance in walking to the bathroom and that, as a proximate consequence of that failure, Heath attempted to walk to the bathroom by herself, fell, and was injured.” Heath, 851 So.2d at 30. The court relied upon a Vermont case, Newhall v. Central Vermont Hosp., Inc., 133 Vt. 572, 349 A.2d 890 (1975), in reaching that conclusion. In Newhall, the Supreme Court of Vermont held that a patient is not required to present expert testimony as to the unreasonableness of delay in answering a call light, because the alleged lack of care related to matters that were reasonably within the knowledge and experience of the average layperson. Id. However, HealthSouth argues that Newhall is inapplicable because Vermont does not have a statute comparable to § 6-5-548.

HealthSouth also contends that the Court of Civil Appeals’ holding is in conflict with Anderson v. Alabama Reference Laboratories, 778 So.2d 806 (Ala.2000), and the cases upon which Anderson relies. In Anderson, this Court stated:

“As a general rule, in a medical-malpractice action, the plaintiff is required to produce expert medical testimony to establish the applicable standard of care and a breach of that standard of care, in order to satisfy the plaintiffs burden of proof. See Allred v. Shirley, 598 So.2d 1347, 1350 (Ala.1992) (citing Tuscaloosa Orthopedic Appliance Co. v. Wyatt, 460 So.2d 156, 161 (Ala.1984)). However, ‘[a]n exception to this rule exists “in a case where want of skill or lack of care is so apparent ... as to be understood by a layman, and requires only common knowledge and experience to understand it.” ’ Wyatt, 460 So.2d at 161 (quoting Dimoff v. Maitre, 432 So.2d 1225, 1226-27 (Ala.1983)). This Court has recognized the following situations as falling within this exception:
“ ‘ “1) where a foreign instrumentality is found in the plaintiffs body following surgery; 2) where the injury complained of is in no way connected to the condition for which the plaintiff sought treatment; 3) where the plaintiff employs a recognized standard or authoritative medical text or treatise to prove what is or is not proper practice; and 4) where the plaintiff is himself or herself a medical expert qualified to evaluate the doctor’s allegedly negligent conduct.” ’
“Allred, 598 So.2d at 1350 (quoting Holt v. Godsil, 447 So.2d 191, 192-93 (Ala.1984) (citations omitted in Allred)).”

778 So.2d at 811. HealthSouth argues that because the Heaths did not present expert testimony and because their claim does not fall within any of the four circumstances enumerated in Anderson, the trial court properly entered a summary judgment for HealthSouth.

HealthSouth points to this Court’s decision in Loeb v. Cappelluzzo, 583 So.2d 1323 (Ala.1991), to support its argument that the failure to fit within one of the four categories listed in Anderson is fatal to the Heaths’ claim. In Loeb, a patient at a doctor’s office arose from a swivel stool when her doctor entered the examination room. In the process, she fell and injured herself. Loeb argued that her claim was “within the exception to the general rule requiring expert testimony” because, she claimed, the facts were such that an average person could understand the malpractice without expert testimony. Loeb, 583 So.2d at 1325. This Court disagreed, finding that the exception to the general rule requiring expert testimony is reserved for limited situations such as when a foreign instrument is left in a patient’s body following surgery or when injuries occur to the body remote from the area of operation. Id.

The Court of Civil Appeals distinguished Loeb, paraphrasing the following language from Loeb: “The parties agreed that the case would be tried under the [AMLA], which, because of the pre-trial order, established the standard of care owed to the patient in this case, and requires that the community standard of due care established by that particular Act be proven by expert medical testimony.” 583 So.2d at 1326; see Heath, 851 So.2d at 32. In this case, the Heaths had not agreed that their claim would be tried only under the AMLA; consequently, the court found that Loeb did not preclude the Heaths’ use of the exception to the rule requiring expert testimony.

HealthSouth counters that the court’s attempt to distinguish this case from Loeb is misplaced. While the court’s rationale for distinguishing Loeb may reasonably be questioned, we nevertheless have reservations about concluding from Loeb that Anderson’s four narrow categories of exceptions to the general rule are an exclusive list, requiring expert testimony in all other medical-malpractice scenarios. An impermissibly restrictive standard can be avoided by a reformulation of the rule.

As previously stated, evidence of medical malpractice generally must be proven by expert testimony. A narrow exception to this rule exists “ ‘in a case where want of skill or lack of care is so apparent ... as to be understood by a layman, and requires only common knowledge and experience to understand it.’ ” Tuscaloosa Orthopedic Appliance Co. v. Wyatt, 460 So.2d 156, 161 (Ala.1984)(quot-ing Dimoff v. Maitre, 432 So.2d 1225, 1226-27 (Ala.1983), quoting in turn Lloyd Noland Found., Inc. v. Harris, 295 Ala. 63, 66, 322 So.2d 709, 711 (1975)). In Anderson, this Court illustrated this exception by listing the following examples: 1) where a foreign object, such as a sponge, remains in a patient’s body after surgery; 2) where the injury is unrelated to the condition for which the plaintiff sought treatment; 3) where a plaintiff relies on an authoritative medical treatise to prove what is or is not proper; and 4) where the plaintiff himself or herself is a medical expert. Anderson, 778 So.2d at 811.

A review of those examples reveals that only the first and second examples relate to that category of cases where want of skill or lack of care is so apparent as to be understood by a layperson, and “requires only common knowledge and experience to understand it.” Wyatt, 460 So.2d at 161. Examples three and four have nothing to do with evidence within the common knowledge of the jury and therefore do not illustrate that category of cases. For this reason alone, reformulation of the statement of the exception to the general rule requiring expert testimony is warranted.

In reviewing the Heaths’ claim under the current formulation, example one is factually inapplicable. One might argue that example two could be interpreted in such a way as to encompass the facts presented by this case, but in most cases, this example applies when a doctor operates on the wrong member of the body. Moreover, Heath’s injury is related to her treatment. As previously noted, examples three and four have nothing to do with an exception for matters within the common knowledge of a layperson. Thus, if the examples listed in Anderson as exceptions to the general rule are considered to be exhaustive, the Heaths would have been required to present expert testimony to survive HealthSouth’s motion for a summary judgment.

Such a restrictive result would not be consistent with an application of the general statement of the exception “ ‘where want of skill or lack of care is so apparent’ ” that only “ ‘common knowledge and experience’ ” are required to evaluate the plaintiffs allegations. Wyatt, 460 So.2d at 161. It would also offend common sense to require the Heaths to use an expert to aid the jury in determining whether the nurses breached the standard of care by completely ignoring for 30 minutes to an hour a call for assistance by a patient who has just returned from the surgical ward following back surgery and who was under orders not to get out of bed.

In situations other than those involving medical care, it is obvious that no expert testimony would be required regarding an alleged disregard of a call for assistance. For example, if an ambulance company did not respond to a call for assistance or a gas company did not respond to a report of a gas leak and injuries resulted from their failure to respond, expert testimony would not be a prerequisite for a plaintiff to meet his or her burden of proof. More should not be required of the Heaths simply because their claim arose on the premises of a hospital.

Accordingly, we reformulate the exception to the rule, as interpreted by Loeb, to recognize first, a class of cases “ ‘where want of skill or lack of care is so apparent ... as to be understood by a layman, and requires only common knowledge and experience to understand it,’ ” Wyatt, 460 So.2d at 161 (quoting Dimoff v. Maitre, 432 So.2d 1225, 1226-27 (Ala.1983)), such as when a sponge is left in, where, for example, the wrong leg is operated on, or, as here, where a call for assistance is completely ignored for an unreasonable period of time. A second exception to the rule requiring expert testimony applies when a plaintiff relies on “ ‘ “a recognized standard or authoritative medical text or treatise,” ’ ” Anderson, 778 So.2d at 811, or is himself or herself a qualified medical expert.

Other jurisdictions use similar formulations in medical-malpractice eases. In McGraw v. St. Joseph’s Hospital, 200 W.Va. 114, 488 S.E.2d 389 (1997), the Supreme Court of West Virginia reversed a summary judgment for the defendant, holding that the plaintiff was not required to present expert testimony to survive the defendant’s summary-judgment motion. The court found that despite the general rule requiring expert testimony in medical-malpractice cases, an exception to the rule applied in McGraw. The court relied on the rationale used by jurisdictions that do not generally require expert testimony in hospital-fall cases:

“ ‘Courts generally make a distinction between medical care and custodial care or routine hospital care. The general rule is that a hospital must in the care of its patients exercise such ordinary care and attention for their safety as their mental and physical condition, known or should have been known, may require .... If the patient requires professional nursing or professional hospital care, then expert testimony as to the standard of that type of care is necessary. ... But it does not follow that the standard of all care and attention rendered by nurses or by a hospital to its patients necessarily require proof by expert testimony. The standard of non-medical, administrative, ministerial or routine care in a hospital need not be established by expert testimony because the jury is competent from its own experience to determine and apply such a reasonable-care standard.’ ”

McGraw, 200 W.Va. at 121, 488 S.E.2d at 396 (quoting Cramer v. Theda Clark Memorial Hospital, 45 Wis.2d 147, 149-50, 172 N.W.2d 427, 428 (1969) (citations omitted) (emphasis added in McGraw)). In this ease, the nurse’s responsibility to respond to Heath’s call for assistance clearly falls within the category of routine hospital care. A jury could use “common knowledge and experience” to determine whether the standard of care was breached in this case, where custodial care, not medical care, is at issue.

HealthSouth argues that McGraw should not be relied upon because West Virginia does not have a statutory scheme like the AMLA, which has been construed to require expert testimony in medical-malpractice actions. In McGraw, the court interpreted the relevant West Virginia statute, W. Va.Code § 55-7B-7 (1986), to mean that trial courts had the discretion to not require expert testimony in all medical-malpractice cases. The court came to this conclusion, despite the statute’s explicit language calling for expert testimony (language not found in our statute), because of previous caselaw that allowed for an exception to the general rule. See Neary v. Charleston Area Med. Ctr., 194 W.Va. 329, 334, 460 S.E.2d 464, 469 (1995) (the court affirmed the summary judgment because the issues involved were complex and required expert testimony; however, the court recognized that expert testimony would not have been necessary in order for the plaintiff to survive á summary-judgment motion if the doctrine of res ipsa loquitor had applied).

HealthSouth contends that the AMLA leaves no room for such discretion by trial courts, and that medical-malpractice cases such as this one can survive the summary-judgment phase only if expert testimony is presented. HealthSouth is correct that the AMLA requires expert testimony in medical-malpractice cases, but this Court has recognized exceptions to that rule, when medical expertise is not necessary to prove the plaintiffs case, such as. here when nurses have failed to respond to a routine, custodial call from a patient. HealthSouth itself points to cases in the line of Anderson and Loeb recognizing that circumstances exist that would make expert testimony unnecessary. In fact, Loeb acknowledged, like McGraw, that in a situation where res ipsa loquitor would apply, expert testimony would not be needed. Loeb, 583 So.2d at 1325. Although res ipsa loquitor is not applicable in this case, this Court has gone further and said that where “the want of skill or lack of care is so apparent as to be within the comprehension of the average layman and thus requires only common knowledge and experience to understand, no expert medical testimony is necessary.” Bell v. Hart, 516 So.2d 562, 566 (Ala.1987). This Court recognized that this exception “has usually been applied” where res ipsa loquitor is applicable or where the injury is not “connected to the condition for which the plaintiff sought ■ treatment,” 516 So.2d at 566 (emphasis added), but this language does not require the conclusion that these are the only two circumstances in which a layperson would have common knowledge sufficient to understand whether the standard of care has been breached.

In Bell, the plaintiff sued her doctor, alleging that he had negligently prescribed an antidepressant. This Court determined that the trial court had not erred in excluding the Bells’ expert witnesses and finding that the absence of expert testimony precluded their medical-malpractice claim. 516 So.2d at 570. In reaching this conclusion, the Court evaluated whether the facts were within the understanding of a layperson; it concluded that they were not. However, this Court also opined in dicta, distinguishing Dimoff, that while a medical-malpractice action based on a doctor’s prescribing antidepressants would require expert testimony, a layperson could conceivably comprehend the standard of care “applicable to the taking of dental impressions with a plaster-like substance,” which was the case in Dimoff. 516 So.2d at 568. Just as the circumstance recognized in dicta by Bell does not require expert testimony, neither does a nurse’s failure to respond to routine calls for assistance fall outside the “common knowledge and experience” of the jury.

HealthSouth contends that allowing “patient monitoring standards” to be within a layperson’s “common knowledge” opens the door for cases that should be evaluated as medical-malpractice cases to be treated as simple negligence cases. HealthSouth points to “factually complex decisions” that would then be submitted to juries without the requisite assistance from medical experts. HealthSouth suggests in its brief to this Court that such decisions could arise in the following scenarios:

“What if there is an emergency on the floor? What if the call light is not working or is improperly used by the patient? And, if an alleged thirty-minute delay is somehow within the understanding of laypeople for purposes of assessing liability, what then of fifteen minutes? Or five? Or one? ... [W]hat about issues of causation, such as where, as here, HealthSouth’s expert testified that the plaintiffs own conduct (i.e., failing to follow her physician’s orders about not getting out of bed) was the actual cause of the injury?”

This argument is not persuasive. All of the above scenarios are routinely determined by juries in all types of cases without the aid of an expert. A layperson does not need an expert to assist him or her in understanding that an emergency on the floor could cause a delay or that a one-minute delay could be reasonable, for example, when the nurses’ desk is two minutes from the patient’s room. As to causation, it is clear that Heath’s injuries occurred because she got out of the hospital bed and fell. A jury can certainly weigh the facts in determining causation, be they a nurse’s failure to respond within a BO-minute time frame or a doctor’s order to stay in bed. We do not see why a medical expert would be necessary to establish that Heath’s failure to follow doctor’s orders — by getting out of bed and injuring herself — was the result of the failure to respond to a call for assistance for an unreasonable period. In this case, where the issue is whether a nurse breached the standard of care by not responding to a routine call within a 30-minute period, laypersons could answer all of the aforementioned hypotheticais by using their “common knowledge and experience.” We do not see how an expert would be necessary to testify as to the “medical standards” involved.

The Chief Justice’s dissent takes the majority to task for its failure to adhere to the text of the AMLA. The Chief Justice, apparently unfettered by the stricture of stare decisis, condemns in his dissent the recognition of exceptions to the rule that allegations of medical malpractice generally must be proven by expert testimony. The exceptions discussed in this opinion have long been recognized by this Court. See Sellers v. Noah, 209 Ala. 103, 95 So. 167 (1923) (foreign instrumentality found in plaintiffs body after surgery); Parrish v. Spink, 284 Ala. 263, 224 So.2d 621 (1969) (injury complained of is in no way connected to condition for which plaintiff sought treatment); Zills v. Brown, 382 So.2d 528 (Ala.1980) (plaintiff uses recognized standard or authoritative medical text or treatise to prove proper practice); Lamont v. Brookwood Health Servs., Inc., 446 So.2d 1018 (Ala.1983) (plaintiff is himself or herself a medical expert qualified to evaluate allegedly negligent conduct). After the Legislature supplemented the AMLA by enacting the Medical Liability Act of 1987, this Court continued to recognize those exceptions on numerous occasions. See, e.g., Anderson, supra, 778 So.2d at 811; Dews v. Mobile Infirmary Ass’n, 659 So.2d 61, 63 (Ala.1995); Murray v. Alonso, 649 So.2d 1268, 1270 (Ala.1994); Henson v. Mobile Infirmary Ass’n, 646 So.2d 559, 562 (Ala.1994); Jones v. Bradford, 623 So.2d 1112, 1115 (Ala.1993); Allred v. Shirley, 598 So.2d 1347, 1350 (Ala.1992); and Bates v. Meyer, 565 So.2d 134, 136 (Ala.1990). Moreover, the Legislature amended the AMLA in 1996 (§§ 6-5-548, -549, and -549.1) and again in 2000 (§ 6-5-551) without altering the effect of the cases that serve as precedent for today’s decision. Presumably, when the Legislature reenacts or amends a statute without altering language that has been judicially interpreted, it adopts a particular judicial construction. Hall v. Chi, 782 So.2d 218, 222-23 (Ala.2000). Therefore, we can presume that the exceptions recognized in this opinion are in fact consistent with legislative intent.

Conclusion

A plaintiff need not offer testimony of an expert witness in a medical-malpractice ease (a) when the act or omission is in a class of cases “ 'where want of skill or lack of care is so apparent ... as to be understood by a layman, and requires only common knowledge and experience to understand it,’ ” Wyatt, 460 So.2d at 161 (quoting Dimoff v. Maitre, 432 So.2d 1225, 1226-27 (Ala.1983)), such as when a foreign object is left in, the wrong body part is operated on, or a call for assistance is ignored for an unreasonable time; or (b) when a plaintiff either relies on “ ‘ “a recognized standard or authoritative medical text or treatise,” ’ ” Anderson, 778 So.2d at 811, or is himself a qualified medical expert. To the extent Loeb and other cases to like effect are in conflict, they are hereby overruled.

We affirm the judgment of the Court of Civil Appeals reversing the summary judgment for HealthSouth.

AFFIRMED.

HOUSTON, JOHNSTONE, HARWOOD, and WOODALL, JJ., concur.

SEE, J., concurs specially.

BROWN and STUART, JJ., concur in the result.

MOORE, C.J., dissents.

SEE, Justice

(concurring specially).

Many jurisdictions differentiate between (1) medical or technical care provided by a hospital and (2) custodial or personal care provided by the same hospital. As the Court of Civil Appeals noted when this case was before them,

“In McGraw v. St. Joseph’s Hospital, 200 W.Va. [114] at 121, 488 S.E.2d [389] at 396 [ (1997) ], the Supreme Court of Appeals of West Virginia, quoting a Wisconsin decision, Cramer v. Theda Clark Memorial Hospital, 45 Wis.2d 147, 172 N.W.2d 427, 428 (1969), ‘articulated the rationale used by jurisdictions that generally do not require expert testimony in hospital fall cases’:
“ ‘ “Courts generally make a distinction between medical care and custodial care or routine hospital care. The general rule is that a hospital must in the care of its patients exercise such ordinary care and attention for their safety as their mental and physical condition, known or should have been known, may require.... If the patient requires professional nursing or professional hospital care, then expert testimony as to the standard of that type of care is necessary.... But it does not follow that the standard of all care and attention rendered by nurses or by a hospital to its patients necessarily require[s] proof by expert testimony. The standard of nonmedical, administrative, ministerial or routine care in a hospital need not be established by expert testimony because the jury is competent from its own experience to determine and apply such a reasonable-care standard.” ’ ”

Heath v. HealthSouth Med. Ctr., 851 So.2d 24, 31 (Ala.Civ.App.2002).

In this case, I concur with the majority’s decision to affirm the judgment of the Court of Civil Appeals because the Heaths’ claim on which that court reversed the summary judgment does not appear to be a medical-malpractice claim, but is instead a claim alleging negligent or wanton-and-willful failure to provide requested custodial care. Because, and to the extent that, the Heaths’ claims are not medical-malpractice claims, I concur that the Heaths need not show the applicable standard of care through expert medical testimony.

MOORE, Chief Justice

(dissenting).

I.

I respectfully dissent. Section 6-5-548(a) of the Alabama Medical Liability Act (“AMLA”), § 6-5-540 et seq., Ala. Code 1975, requires that a plaintiff in a medical-malpractice action prove that the defendant 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.” (Emphasis added.) Section 6-5-548(b) defines a “similarly situated health care provider” when the health-care provider alleged to have breached the standard of care has no medical specialty, “[notwithstanding any provision of the Alabama Rules of Evidence to the contrary,” as

“one who meets all of the following qualifications:
“(1) Is licensed by the appropriate regulatory board or agency of this or some other state.
“(2) Is trained and experienced in the same discipline or school of practice.
“(3) Has practiced in the same discipline or school of practice during the year preceding the date that the alleged breach of the standard of care occurred.”

(Emphasis added.) Likewise, § 6-5-548(c) provides four requirements a similarly situated health-care provider must meet in an AMLA action in which the health-care provider who allegedly breached the standard of care is a specialist. Moreover, if the expert who is testifying is a “health-care provider,” he or she may testify against another health-care provider “based on a breach of the standard of care only if he or she is a ‘similarly situated health care provider’ as defined [in § 6-5-548(b) or (c) ].” § 6-5-548(e). There are no exceptions in the statute for proving the applicable standard of care.

Given the exact (and exacting) burden of proof a plaintiff asserting a medical-malpractice claim must meet, § 6-5-548(a), only expert testimony could establish the “relative” standard of care the defendant health-care provider is held to under the AMLA. But today, by its “reformulation” of this Court’s judicially created exceptions to the AMLA, the majority commits two errors. First, by continuing to insert exceptions into the requirements of the AMLA, it ignores the limitations of the AMLA and the limits of this Court’s own authority. Second, by adding another specific exception to the AMLA’s requirements — what the Court calls “reformulating” — this Court not only expands its own judicial exceptions (and thereby shrinks the scope of the AMLA), but flouts stare decisis by contradicting its own precedent that articulated those (once limited) exceptions.

II.

Medical malpractice was originally a matter of common law, with the attendant' burdens of proof and exceptions recognized by Alabama courts, not the Legislature. See, e.g., Parrish v. Spink, 284 Ala. 263, 266-67, 224 So.2d 621, 623-24 (1969) (listing exceptions to the general rule that proof of proper practice, treatment, and procedure in a medical-malpractice case “can be established only by expert medical evidence”). But in 1975 the Legislature passed “The Alabama Medical Liability Act,” Act No. 513, Ala. Acts 1975, and in 1987 the Legislature passed “The Alabama Medical Liability Act of 1987,” Act No. 87-189, Ala. Acts 1987, which supplemented the 1975 act. See § 6-5-541, Ala.Code 1975. The 1987 act, amended in 1996 and again in 2000, codified the standards for the burden of proof in medical-malpractice actions. See § 6-5-548.

Nevertheless, this Court continued to claim that the common-law exceptions to the statutory requirement of expert medical testimony in demonstrating the proper standard of care in a medical-malpractice action were still applicable, and it treated the AMLA requirement of expert testimony as merely a “general rule.” See 851 So.2d at 37; Anderson v. Alabama Reference Labs., 778 So.2d 806, 811 (Ala.2000); Bates v. Meyer, 565 So.2d 134, 136 (Ala.1990). Thus, my first disagreement with the majority is its continued disregard for the Legislature’s legitimately enacted requirements in the AMLA for the burden of proof and its reliance on its own precedent, rather than on the statute, as “the original source” of the judicial exceptions it recognizes. This case presents an excellent opportunity to return to a proper and limited interpretation of § 6-5-548.

The majority defends its decision today by noting that the Legislature amended the AMLA in 1996 and again in 2000 without, the majority asserts, altering the effect of the cases the majority cites as precedent for today’s decision. 851 So.2d at 41. “Presumably, when the Legislature reenacts or amends a statute without altering language that has been judicially interpreted, it adopts a particular judicial construction.” 851 So.2d at 41-42, citing Hall v. Chi, 782 So.2d 218, 222-23 (Ala.2000). The majority presumes that “the exceptions recognized in this opinion are in fact consistent with legislative intent.” 851 So.2d at 42 (emphasis added).

First and foremost, the presumption of “legislative acquiescence,” although a well-recognized rule of statutory construction, is “of limited application and is merely to aid in ascertaining the legislative intent.” 82 C.J.S. Statutes § 370 (1953). “The general rule does not apply where the statute in question is unambiguous, or where the plain language of the statute expresses an intent contrary to the construction given it.” Id. If this Court can ascertain the intent from the language and history of a statute, “it is not necessary to apply any presumptions of law which will aid in the interpretation when its meaning does not otherwise appear.” Long v. Poulos, 234 Ala. 149, 150, 174 So. 230, 231 (1937). See also In re Elliott’s Estate, 22 Wash.2d 334, 156 P.2d 427 (1945) (the general rule of legislative acquiescence is not conclusive, and it is applicable only where the contrary is not clearly shown by the language of the act).

The AMLA, as this Court recognizes, requires expert medical testimony to prove what a layman’s testimony could not — that the defendant 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.” § 6-5-548(a). The language “is plain and unambiguous, and in such a case the Legislature should be understood to mean what [it] plainly expressed, leaving no room for construction.” State v. Praetorians, 226 Ala. 259, 260, 146 So. 411, 412 (1933). “ ‘The courts must confine themselves to the construction of the law as it is, and not attempt ... to supply defective legislation, or otherwise amend or change the law under the guise of construction.’ ” 226 Ala. at 260, 146 So. at 412, quoting 59 C.J. Statutes § 564 (1932). The Legislature’s expressed intent in enacting the AMLA was to limit the threat of legal actions for alleged medical malpractice, § 6-5-540, and the codified requisite burden of proof for the standard of care is mandatory and absolute (notwithstanding the Alabama Rules of Evidence, see § 6-5-548(b) and (e)). No exceptions are recognized or otherwise referred to in § 6-5-548. This Court is bound by the plain and unambiguous language of § 6-5-548, “leaving no room for construction” or presumptions. Praetorians, 226 Ala. at 260, 146 So. at 412.

Second, even if the presumption of legislative acquiescence could properly be applied to the statute at issue here, it does not justify the Court’s addition of another exception to the requirements of § 6-5-548. Today, the Court specifically removes from the reach of § 6-5-548 the factual scenario in which a patient’s calls for assistance go unheeded. The Court claims that because the Legislature has not countered this Court’s ambitious interpretations of § 6-5-548 in past amendments to the AMLA, it is somehow “consistent with legislative intent” to add yet another judicial exception to the statute. However, even if past judicial exceptions have been legitimized by legislative inaction, this Court has no authority to add to those exceptions. It is impossible, of course, for the Legislature to have intended, in 2000 or before, to approve an exception to the AMLA this Court creates in 2002. Such prospective approval of this Court’s interpretations would create plenary power that this Court — or any court— cannot wield within the bounds of the doctrine of separation of powers. See State v. Commercial Loan Co., 251 Ala. 672, 675, 38 So.2d 571, 573 (1949) (while this Court “may interpret the act, [it] cannot amend it”).

III.

Even if I were to accept the principle that this Court has the quasi-legislative powers that it purports to wield today, the decision of this Court runs contrary to its own decisions regarding the exceptions to the AMLA. Before today’s decision, the Court had proposed only four exceptions for the factual circumstances “ ‘ “where want of skill or lack of care is so apparent ... as to be understood by a layman, and requires only common knowledge and experience to understand it.” ’ ” Anderson, 778 So.2d at 811 (quoting Tuscaloosa Orthopedic Appliance Co. v. Wyatt, 460 So.2d 156, 161 (Ala.1984), quoting in turn Dimoff v. Maitre, 432 So.2d 1225, 1226-27 (Ala.1983)). Until overruled today, Loeb v. Cappelluzzo, 583 So.2d 1323 (Ala.1991), had limited the exceptions to the four enumerated above. Those exceptions did not include the present scenario — -where a patient’s calls for assistance go unheeded. Thus, under this Court’s own decisions, the Heaths are required by § 6-5-548 to present expert testimony to prove that the defendants breached the relevant standard of care. Indeed, the admission by this Court that a “reformulation” of its own judicially created exceptions was necessary to achieve the outcome it reaches in the majority opinion proves the point. See 851 So.2d at 38.

IV.

By once more altering the rules of the medical-malpractice game, this Court allows the Heaths to prove medical malpractice free from the stricture of § 6-5-548. The Court’s continued adherence to judicially grafted exceptions to the AMLA, and especially today’s grafting of a new exception, continues this Court’s alteration of the Legislature’s clear requirements for bringing an action under the AMLA.

For these reasons, I must respectfully dissent.

      . Section 6-5-542(1), Ala.Code 1975, 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.”

      . See § 6-5-548(e) ("The purpose of this section is to establish a relative standard of care for health care providers.”).

      .Indeed, this Court recognizes today, as it has before, "that the AMLA requires expert testimony in medical-malpractice cases.” 851 So.2d at 40. See, e.g., Schuffert v. Morgan, 777 So.2d 87, 91 (Ala.2000) ("the plaintiff must prove by expert medical testimony that the physician breached the standard of care and by the breach proximately caused the plaintiff's injury”), citing University of Alabama Health Servs. Found. v. Bush, 638 So.2d 794 (Ala.1994).

      . Section 6-5-540 states that the Legislature’s expressed intent in enacting the AMLA was to restrict “the threat of legal actions for alleged medical injury causes."

      . The judicially recognized exceptions to § 6-5-548, before the majority issued its opinion today, were as follows:

        "1) where a foreign instrumentality is found in the plaintiff’s body following surgery; 2) where the injury complained of is in no way connected to the condition for which the plaintiff sought treatment; 3) where the plaintiff employs a recognized standard or authoritative medical text or treatise to prove what is or is not proper practice; and 4) where the plaintiff is himself or herself a medical expert qualified to evaluate the doctor’s allegedly negligent conduct.” ’ ”

        Anderson, 778 So.2d at 811 (quoting Allred v. Shirley, 598 So.2d 1347, 1350 (Ala.1992), quoting in turn Holt v. Godsil, 447 So.2d 191, 192-93 (Ala.1984)).


author: YATES, Presiding Judge.

text:
    BESSEMER STATE TECHNICAL COLLEGE v. Barbara HOSEA-STUDDARD.
    2001228.
    Court of Civil Appeals of Alabama.
    May 10, 2002.
    Rehearing Denied July 12, 2002.
    Certiorari Denied Dec. 13, 2002 Alabama Supreme Court 1012044.

      Mark T. Waggoner and Aaron L. Det-tling of Hand Arendall, L.L.C., Birmingham; and J. Victor Price, Tallassee, for appellant.
    Sam Heldman of Gardner, Middle-brooks, Gibbons & Kittrell, Washington, D.C.; Candis A. McGowan of Gardner, Middlebrooks, Gibbons & Kittrell, Birmingham; and J. Cecil Gardner of Gardner, Middlebrooks, Gibbons & Kittrell, Mobile, for appellee.
   YATES, Presiding Judge.

In August 1999, W. Michael Bailey, the president of- Bessemer State Technical College (“the College”), gave notice to Barbara Hosea-Studdard of her proposed termination from her job as displaced homemakers/sex-bias-elimination coordinator at the College, because federal funding for the project was being discontinued. Hosea-Studdard was informed that she was entitled to a pre-termination hearing and that if she was terminated from her employment with the College, she was entitled to an appeal and a hearing of that decision in accordance with the Fair Dismissal Act, 36-26-100 et seq., Ala.Code 1975, and the rules of the State Board of Education.

Following the pre-termination hearing, Hosea-Studdard was terminated from her employment with the College on October 1, 1999. She subsequently sought an appeal and a hearing before a hearing panel.

Following hearings on January 10, January 11, and January 18, 2000, the panel, on March 3, 2000, entered an order reversing the decision of the College and ordering that Hosea-Studdard be reinstated with the College. The panel’s main opinion, authored by member Bryant A. Whitmire, reads as follows:

“1. That Hosea-Studdard was an employee of Bessemer Technical College. Her job position was dissolved by non-funding of the Federal Government on the program that she ran.
“2. That four full[-time] new positions were opened up due to a restructuring of [the] programs of the college.
“3. That [Hosea-Studdard] applied for three of those four new positions and was deemed qualified for said positions due [to] the fact that she was granted an interview.
“4. [Hosea-Studdard] was not deemed to be one of the most qualified and three individuals were submitted to the President of the college so that he could make a decision as to who would receive said position. One of the said positions was filled with a probationary individual who presently holds the job.
“5. That the college followed all the rules and regulations as prescribed by Shuford v. Alabama State Board of Education[, 846 F.Supp. 1511 (M.D.Ala.1994)]....
“6. That there was evidence presented that there may have been some animosity between the interviewers and the applicant, [Hosea-Studdard]. However, there was not enough evidence to show that she was unfairly treated or that there were political or prejudicial motives in her not being submitted to the president.
“7. [Hosea-Studdard] had been employed with the college for approximately ten years and was a non-probationary employee. At the time of the termination [Athens State College v. Ruth, 795 So.2d 703 (Ala.Civ.App.1999),] had not been issued. Therefore, the college acted in a fair and impartial manner in making its selection.
“8. The Athens State [College] opinion was issued in December of 1999, and is the current law. It specifically states that a tenured employee should be given any job opening that they [are] qualified for, rather than allowing a non-probationary individual or other individuals to have said job.
“9. It is the opinion of the undersigned that the spirit of [Athens State College] case was to make sure that tenured employees were given the first opportunity to be appointed to said positions that he/she may be qualified [for]. It was apparent that [Hosea-Studdard] was qualified for at least three of the positions that were opened during the span of her termination. The college correctly decided, based on the Shuford case, that they had the perogative to submit the most qualified to the college president, and they felt like that is what they had done.
“10. However, under the current law, the case law is in conflict with the Shuford decision, which would give the president of the college the opportunity to pick the most qualified. If a tenured employee was qualified for a job opening, then they should be placed in that position, and the interview process [pursuant to Shuford] should not have occurred. This would leave the president without the opportunity to decide who is the most qualified. Therefore, if you follow your current law, [Hosea-Stud-dard] should be slotted in one of the three positions for which she was qualified ....
“The argument that this case law is not retroactive did not change the fact that panel members are required to follow the current law, even though, the college, at that time, did not have that decision before them so that they could follow said law. This panel member believes that they did follow the proper procedure. Under the current law, we are in non-compliance with [Athens State College], if we uphold the decision of the college. The fact of whether it is retroactive or not does not change the fact current law requires a tenured employee be given that position if qualified.”

Panel member William M. Dawson issued a concurring opinion joining the opinion authored by Whitmire and stating additionally that the “applicable law from the Alabama appellate courts is clearly controlling precedent in this case. Failure by the school to consider the employee’s permanent status renders the action to terminate arbitrary and not in conformity with law.”

On April 3, 2000, the College petitioned the Circuit Court of Jefferson County, Bessemer Division, for a writ of certiorari, asking it to reverse the panel’s judgment. On June 12, 2001, Hosea-Studdard moved for a summary judgment; on July 31, 2001, the College responded to her motion. On August 8, 2001, the trial court entered a summary judgment in favor of Hosea-Studdard, finding that the decision of the hearing panel was supported by substantial evidence. The College appeals.

In reviewing the disposition of a motion for summary judgment, we use the same standard the trial court used in determining whether the evidence before it presented a genuine issue of material fact and whether the movant was entitled to a judgment as a matter of law. Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that no genuine issue of material fact exists, the burden then shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (Ala.1989). Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to.be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). This court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Banners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).

Hosea-Studdard was employed by the College in the non-teacher position of coordinator of the displaced homemakers/sex-bias-elimination project (“the Project”). She had obtained nonprobationary status with the College under the Fair Dismissal Act. Hosea-Studdard’s salary was paid with State funds; however, the project she administered was federally funded.

The Project was funded with specific line-item funding through the Carl D. Perkins Vocational and Technical Education Act, 20 U.S.C. § 2301 et seq. (1988) (“the Perkins Act”). However, in 1998, amendments to the Perkins Act changed the procedure for obtaining Perkins Act funding. The amendments eliminated the line-item through which the Project was funded and implemented a process whereby individual states were required to develop a “state plan for career technical education.” The state plan for Alabama was to implement a plan known as “Workforce 21.” This plan was approved by the federal government as the state plan for Alabama.

In order to implement the Workforce 21 plan, the various institutions, including the College, were required to develop a college plan consistent with the state plan. To that end, the College was required to assemble a strategic analysis team (“the Team”) to assess the needs of the College and to develop the college-level plan. The Team was to consist of representatives from the College, as well as representatives of local business, industry, and labor. Bailey, as the College’s president, was responsible for appointing the local members of the Team from the College. Bailey then had no further involvement with the Team until it had developed the college-level plan and submitted it to the Alabama State Department of Postsecondary Education (“the Department”). The college-level plan submitted to the Department would ultimately become the College’s application to the federal government for funding under the Perkins Act.

In June 1999, Fred Gainous, the chancellor of the Department, notified Bailey that Perkins Act funding was no longer earmarked for the Project; however, he also notified Gainous that Perkins Act funding could be used to support the Project if the Project was identified as a priority in the college-level plan. The Perkins Act provides that the funds must be used for required activities and may be used for certain permitted activities. The recipient of the Perkins Act funds must undertake the required activities first, then if any funds remain, the recipient may undertake the permitted activities.

The Team determined that certain projects and positions that had previously been funded with Perkins Act funding were no longer consistent with the activities required under the Perkins Act, with the Team’s assessment of the needs of the College, and with the demographics of the College’s student body. Particularly, the Team concluded that the Perkins Act funds were not put to the best use by segregating the students enrolled in the Project into a separate program and expending the funds specifically for that group; the Project as a separate and distinct program was eliminated.

Bailey approved the college-level plan and it was then submitted to the Department. As a result of the Team’s assessment, four individuals, including Hosea-Studdard, were notified that their positions would be eliminated and that their employment with the College would be terminated. The notice informed Hosea-Studdard that her termination was the “result of discontinuation of federal funding for the activities and projects you coordinate.”

In addition to eliminating the four positions, the Team also created four new positions. These newly created positions were at the same salary grade as was Hosea-Studdard’s position of coordinator of the Project, and some of the same services offered under the Project were also being offered under the newly created programs. The four new positions were posted and advertised. Copies of the job announcements were hand-delivered to the four individuals whose positions had been eliminated, and they were encouraged to apply for the positions. Hosea-Studdard applied for each of the four new positions. Based on the selection committee’s initial review of Hosea-Studdard’s application and the requirements for the newly created positions, it was determined that she met the minimum qualifications for three of the four positions — curriculum specialist, teaching and learning coordinator, and career services coordinator — and she was invited to interview for those three positions. Following Hosea-Studdard’s interview, the selection committee determined that she was not qualified, or that she was not the most qualified, for either of the three new positions for which she had interviewed. Consequently, Hosea-Studdard was not one of the three applicants submitted to Bailey for employment pursuant to the Shuford consent decree.

The College argues that the trial court erred in entering a summary judgment in favor of Hosea-Studdard, because, it says, the decision of the hearing panel was based solely on this court’s decision in Athens State College v. Ruth, 795 So.2d 703 (Ala.Civ.App.1999), and that decision was subsequently overruled by the supreme court in Ex parte Athens State College, 795 So.2d 709 (Ala.2000), while its petition for a writ of certiorari was pending in the trial court.

In reviewing the decision of a hearing panel, this court’s standard of review is the same as that of the circuit court’s. Colbert County Bd. of Educ. v. Johnson, 652 So.2d 274 (Ala.Civ.App.1994). Our review is limited to questions of whether there was substantial evidence to support the panel’s decision, whether the panel’s findings were contrary to the uncontradict-ed evidence, and whether the panel improperly applied the law to the findings. Jefferson County Bd. of Educ. v. Moore, 706 So.2d 1147 (Ala.1997). In this case, the College asks this court to decide a question of law, therefore, our review is de novo. Thompson Tractor Co. v. Fair Contracting Co., 757 So.2d 396 (Ala.2000).

Following Hosea-Studdard’s termination from her employment with the College but before the hearing before the panel, this court issued its opinion in Athens State College v. Ruth, supra. In that case, Betty Ruth, a nonprobationary non-teacher, had been employed with the college for 17 years as the director of the county retired senior volunteer program (“RSVP”). In April 1995, the college informed Ruth that it would no longer sponsor the RSVP, gave notice to her of its intent to terminate her employment, and did in fact terminate her employment. In the notice, the college alleged that the elimination of the RSVP necessitated a justifiable decrease in jobs. Id. A hearing was held before a review panel to consider Ruth’s termination by the college. The review panel ordered that she be reinstated as a nonteacher employee of the college. The college petitioned the circuit court for a writ of certiorari; that court affirmed the decision of the hearing panel, i. and the college appealed to this court. Id.

The college argued on appeal that it was not required to retain Ruth as an employee after it stopped sponsoring the RSVP. The college contended that the only way for it to have retained Ruth as an employee was to place her in a position occupied by a probationary nonteacher employee, and that it was not required to do that. Ruth argued that the college was required to place her in a position held by a probationary, nonteacher employee for which she was qualified. Id. This court agreed with Ruth and held that although Ruth’s position had been eliminated, the college had other positions for which she was qualified; it affirmed the panel’s decision ordering the college to place her in a position for which she was qualified and that was being held by a probationary, nonteacher employee. Id.

Judge Crawley dissented from this court’s opinion in Athens State College v. Ruth, concluding that the college was justified as a matter of law in terminating Ruth’s employment based on a justifiable decrease in positions, and stating that once the college decided to stop its sponsorship of the RSVP, it was not required to retain Ruth as an employee. Judge Crawley stated:

“To force the College to place [Ruth] in another position held by a probationary, nonteacher employee without allowing the College or Ruth’s potential supervisor to consider Ruth’s specific qualifications for a position and without allowing the consideration of the preferences of the supervisor or the particular needs of the College in filling that position would create an undue hardship on the College.”

795 So.2d at 709 (Crawley, J., dissenting; Thompson, J., also dissented, without writing).

While the College’s petition for a writ of certiorari was pending in the trial court, the supreme court issued its opinion in Ex parte Athens State College, 795 So.2d 709 (Ala.2000), reversing this court’s judgment. The supreme court agreed with Judge Crawley, quoting extensively from his dissenting opinion, and holding that once the college stopped sponsoring the RSVP, the position of RSVP director was no longer available; that the college was justified in terminating Ruth’s employment; and that the college was not required to place Ruth in another position for which she was qualified. Ex parte Athens State College, 795 So.2d at 718-14.

Hosea-Studdard argues that the College has waived its argument regarding the Ruth case, because, it says, the College conceded before the hearing panel that it was required to place her in one of the new positions if she was qualified for the position. Hosea-Studdard focuses on the following statements made by the College’s counsel to the hearing panel:

“Now, the college does certainly conceive [] that in instances where a person is a nonprobationary employee and their position is eliminated for whatever reason other than for not being able to perform their duties satisfactorily] or some other reason other than cause, that if there was a position for that person at the college that they are in fact qualified to receive, that they should receive that position subject to the provisions of a federal court order that is known by people in the education area as the Shu-ford consent decree.... [W]e expect to show that everything was done completely in accordance with the rules and regulations of the State Department of Education and the Shuford consent decree and that when it got down to determining who would fill the vacant positions that the selection and interview process demonstrated that [Hosea-Stud-dard] was not qualified for the position and, therefore, was not put in one of them. That is all.”

We do not agree that this statement by the College’s attorney waived its argument regarding the reversal of the Ruth decision by the supreme court. The College’s attorney was merely stating the law as it existed at the time of the hearing before the panel, and it cannot be construed as a prospective waiver of any future change in the law.

Accordingly, we must consider whether the reversal of the Ruth decision by our supreme court necessarily required the trial court in the present case to apply the law as pronounced by our supreme court in Ex parte Athens State College, and reverse the decision of the hearing panel. A reading of the hearing panel’s decision in reversing the College’s decision to terminate Hosea-Studdard’s employment indicates that it relied solely on this court’s decision in Athens State College v. Ruth, before it was reversed by the supreme court. The hearing panel concluded that Hosea-Studdard was deemed qualified for three of the four new positions based on the fact that she had been granted interviews for those positions. The hearing panel concluded that the College was correct in its determination that, based on the Shuford consent decree, it had the prerogative to submit the three most qualified applicants for each of the new positions to Bailey for possible employment, and that Hosea-Studdard was not deemed by the selection committee to be one of the three most qualified applicants. The hearing panel determined that the College had complied with the mandates of the Shuford consent decree. However, the hearing panel also determined that the Shuford consent decree was in conflict with this court’s decision in Athens State College v. Ruth, and that that decision was the current law. The hearing panel concluded that following the current law of Athens State College v. Ruth, Hosea-Studdard should have been placed in one of the three positions for which she was qualified.

Our supreme court has stated:

“The general rule is that a case pending on appeal will be subject to any change in the substantive law. The United States Supreme Court has stated, in regard to federal courts that are applying state law: ‘[T]he dominant principle is that nisi prius and appellate tribunals ahke should conform their orders to the state law as of the time of the entry. Intervening and conflicting decisions will thus cause the reversal of judgments which were correct when entered.’ Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 543, 61 S.Ct. 347, 85 L.Ed. 327 (1941). See also United States v. Schooner Peggy, 1 Cranch 103, 5 U.S. 103, 2 L.Ed. 49 (1801). Thus, courts are required to apply in a particular case the law as it exists at the time it enters its final judgment:
“ ‘[I]t has long been held that if there is a change in either the statutory or decisional law before final judgment is entered, the appellate court must “dispose of [the] case according to the law as it exists at the time of final judgment, and not as it existed at the time of the appeal.” This rule is usually regarded as being founded upon the conceptual inability of a court to enforce that which is no longer the law, even though it may have been the law at the time of trial, or at the time of the prior appellate proceedings.’
“Note, Prospective Overruling and Retroactive Application in the Federal Courts, 71 Yale L.J. 907, 912 (1962) (quoting Montague v. Maryland, 54 Md. 481, 483 (1880)).”

Alabama State Docks Terminal Ry. v. Lyles, 797 So.2d 432, 438 (Ala.2001). Additionally, our supreme court stated:

“ ‘Although circumstances occasionally dictate that judicial decisions be applied prospectively only, retroactive application of judgments is overwhelmingly the normal practice. McCullar v. Universal Underwriters Life Ins. Co., 687 So.2d 156 (Ala.1996) (plurality opinion). “Ret-roactivity ‘is in keeping with the traditional function of the courts to decide cases before them based upon their best current understanding of the law.... It also reflects the declaratory theory of law, ... according to which the courts are understood only to find the law, not to make it.’” 687 So.2d 156, quoting James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 535-36, 111 S.Ct. 2439, 2443-44, 115 L.Ed.2d 481 (1991).’ ”

Lyles, 797 So.2d at 439, quoting Professional Ins. Corp. v. Sutherland, 700 So.2d 347, 352 (Ala.1997).

It is clear that the hearing panel relied solely on this court’s decision in Athens State College v. Ruth in reversing the decision of the College to terminate Hosea-Studdard’s employment. While the case was pending in the trial court on the College’s petition for a writ of certiorari, the supreme court, in Ex parte Athens State College, reversed this court’s judgment. We conclude that the trial court erred as a matter of law in failing to apply the law as it existed at the time it entered the summary judgment in favor of Hosea-Stud-dard, i.e., the law as pronounced by the supreme court in Ex parte Athens State College, and in failing to reverse the decision of the hearing panel.

The hearing panel has already concluded that the College, pursuant to the Shuford consent decree, had the authority to submit the three most qualified applicants to Bailey for possible employment, that the selection committee had determined that Hosea-Studdard was not one of the three most qualified applicants, and that the College had complied with the mandates of the Shuford consent decree. Accordingly, the summary judgment entered in favor of Hosea-Studdard is due to be reversed and the case is remanded to the trial court for it to enter a judgment consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

CRAWLEY, THOMPSON, PITTMAN, and MURDOCK, JJ., concur.

      . The hiring and promotion practices of all junior, technical, and community colleges in Alabama are governed by the consent decree entered in Shuford v. Alabama State Board of Education, 846 F.Supp. 1511 (M.D.Ala.1994). In Shuford, Humphrey L. Shuford, a black male, brought a civil-rights action against the Alabama State Board of Education, claiming that he had been denied promotions because of his race. The parties submitted to a proposed consent decree, which was approved by U.S. District Judge Myron Thompson..
      The consent decree requires, among other things, that when a faculty or staff position vacancy occurs, a complete and accurate job description for the position must be developed, and the vacancy must be advertised. The vacancy announcement must specify the salary range and describe fully the duties, qualifications, and selection criteria for the position. Shuford, 846 F.Supp. at 1537.
      Applicants who meet the minimum requirements contained in the vacancy announcement shall be invited for an interview; however, the selection committee may limit the number of interviews to 10, if more than 10 minimally qualified applicants apply. Shuford, 846 F.Supp. at 1538. The selection committee must have at least 40% black membership; the selection committee is charged with the responsibility of screening the applications and interviewing the applicants. The selection committee shall then recommend three names to the president of the institution for employment. The president may then select one of the applicants for the vacancy recommended by the selection committee. The president shall not select any person to the fill the vacancy that was not recommended by the selection committee. However, the president, if he or she deems it necessary, may reopen the application and selection process. Shuford, 846 F.Supp. at 1539.
      The Shuford consent decree also provides for lateral transfers of permanent status employees. In the event that there are one or more nonprobationary employees employed in positions that are equivalent to the vacant position in pay grade and responsibility, "the president of the college shall have the discretion, in lieu of external solicitation of applicants,” to offer such employees the opportunity for lateral transfer into the vacant position. Shuford, 846 F.Supp. at 1539. Bailey testified that he had the discretion to choose the lateral transfer process but did not do so in this case..

      . Hosea-Studdard contends that the presence of the word "conceive” is the result of a typographical mistake because it is not contextually inappropriate. She contends that the College actually used the word "concede.” The College disputes this contention, and contends that the transcript is correct.