Betty Callens v. Episcopal Foundation of Jefferson County d/b/a St. Martin's In-The-Pines (Appeal from Jefferson Circuit Court: CV-21-902704).

Rel: January 10, 2025

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts,
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2024-2025

_________________________

SC-2024-0226
_________________________

Betty Callens

v.

Episcopal Foundation of Jefferson County d/b/a St. Martin's In-
The-Pines

Appeal from Madison Circuit Court
(CV-21-902704)

MENDHEIM, Justice.

Betty Callens appeals from the Jefferson Circuit Court's summary

judgment entered against her and in favor of the Episcopal Foundation
SC-2024-0226

of Jefferson County d/b/a St. Martin's In-The-Pines ("St. Martin's")

concerning Callens's claims of negligence, wantonness-willfulness,

battery, and medical malpractice. We affirm.

I. Facts

At the time of the events in question, Callens was 81 years old. On

September 23, 2019, Callens had a left-hip-replacement surgery, also

known as an arthroplasty, at Grandview Medical Center ("Grandview").

The surgery was performed by Dr. Dewey Jones IV. There were no

complications with the surgery, and Callens was discharged from

Grandview on September 27, 2019, to Brookdale Skilled Nursing Facility

("Brookdale") for rehabilitation. In her complaint, Callens alleged that

she was subjected to extremely poor nursing care at Brookdale.

"13. While at Brookdale, Callens was forced to urinate
in diapers and change them herself while lying in bed. She
could not get anyone to bring her water or pain medication.

"….

"18. In or around October 3, 2019, Callens had to use the
bathroom late during the night. Callens tried to alert
Brookdale's staff on duty by pressing the help button located
on her bed. Callens pressed the 'help' button continuously for
approximately twenty (20) minutes.

"19. Callens was never assisted by a Brookdale
employee.
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"20. Callens was forced to get herself out of bed to go to
the bathroom without assistance from a Brookdale employee."

Callens slipped and fell in the bathroom, allegedly due to water on the

bathroom floor, and she sustained another fracture of her left hip as well

as a fractured left femur.

In the early morning on October 4, 2019, Callens was again

transported to Grandview. On October 7, 2019, Callens underwent an

open reduction and internal fixation or "ORIF" of her left

intertrochanteric region of the femur. On October 8, 2019, Callens

received a closed reduction of the left-hip dislocation. 1 During her stay at

Grandview, Callens was diagnosed with Clostridioides difficile ("C. diff."),

which caused her to lose weight and to contract several urinary-tract

infections. On October 15, 2019, Callens was discharged from Grandview

to St. Martin's for rehabilitation.

1Inits brief to this Court, St. Martin's asserts that the hip
dislocation occurred "in the absence of any known trauma following
[Callens's] surgery on October 7, 2019." St. Martin's brief, p. 7. Callens's
medical records do not directly support that assertion.
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In her complaint, Callens alleged that the following incident

occurred on October 21, 2019, while she was receiving treatment and

being bathed by a St. Martin's nurse as Callens was lying in her bed:

"46. The nurse rolled Callens on her side to clean her
backside.

"47. The nurse began to poke, push, and prod on
Callens's left hip which was healing from surgery.

"48. The nurse kept poking, pushing, and prodding with
more and more pressure.

"49. Callens told the nurse that she was applying too
much physical exertion on her healing hip and asked her to
stop.

"50. The St. Martin's nurse said, 'Hush, shut up, be
quiet.' 'We are trying to clean you up.'

"51. Callens responded by saying, 'Stop, you are
breaking my hip!'

"52. The St. Martin's nurse did not stop and applied
enough pressure that Callens felt and heard a 'pop' in her hip.

"53. The pop was extremely loud and startled the
nursing staff.

"54. Callens was in a tremendous amount of pain and
briefly lost [consciousness].

"55. An X-Ray technician came to Callens's room to
conduct X-Rays of her hip.

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"56. However, the St. Martin's technician told Callens,
'We are doing X-Rays of your stomach.' "

The X-rays revealed that Callens had suffered another left-hip

dislocation, described as an "[a]cute left femoral dislocation." At that

point, Callens was again transported to Grandview.

On September 18, 2021, Callens commenced an action in the

Jefferson Circuit Court against Brookdale and St. Martin's. Callens

asserted claims of negligence, wantonness-willfulness, battery, and

medical malpractice against St. Martin's and claims of negligence against

Brookdale. St. Martin's answered Callens's complaint on October 18,

2021. Brookdale answered her complaint on October 20, 2021.

On February 24, 2023, Brookdale filed a summary-judgment

motion. On March 13, 2023, St. Martin's filed a summary-judgment

motion. In that motion, St. Martin's argued that a summary judgment

was appropriate because Callens had failed to submit any medical-expert

testimony regarding a breach of the standard of care or medical causation

of her injuries. St. Martin's also contended that its "care and treatment

of [Callens] was in accordance with the standard of care." In support of

that latter proposition, St. Martin's submitted an affidavit from Michael

Britton, R.N. Britton testified that he had been a "licensed Registered
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Nurse … since March 20, 1991, through the present time" and that he

had

"worked in long term care providing hands on care to
residents such as Betty Callens since March 20, 1991. At the
time of Ms. Callens's residency specifically, I worked as a
Director of Nursing in a long-term care facility and provided
hands on care at that facility. I also worked in long-term care
as a nurse providing hands on care to residents of nursing
homes in the years preceding and following the time of Ms.
Callens's residency at St. Martin's.

"….

"5. I have extensive experience providing and overseeing
the type of medical care and treatment that St. Martin's
provides to residents like Ms. Callens. This experience
includes, but is not limited to, providing and overseeing care
for rehabilitation residents like Ms. Callens for many years
prior to Ms. Callens's admission to St. Martin's, while she was
a resident at St. Martin's, and after she was a resident at St.
Martin's."

Britton stated that he had "reviewed the medical records related to the

care and treatment provided by St. Martin's to Ms. Callens, including,

but not limited to, Ms. Callens's St. Martin's medical charts." He

concluded:

"6. Based on my education, training, and years of
experience as a nurse, I am familiar with the standard of care
to be exercised by skilled and rehabilitation staff, including
nurses and certified nursing assistants in 2019 when
providing medical care and treatment to residents like Ms.
Callens. It is my opinion, based on my education, training,
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experience, [and] knowledge about the applicable standard of
care, and review of Ms. Callens's St. Martin's records, that the
care and treatment St. Martin's provided to Ms. Callens was
reasonable, appropriate, and met the applicable standard of
care."

On March 31, 2023, Callens filed a response in opposition to

Brookdale's summary-judgment motion. Brookdale filed a reply to

Callens's response on April 4, 2023. Also on March 31, 2023, Callens filed

a response in opposition to the summary-judgment motion filed by St.

Martin's. In that response, Callens argued that her injuries were not

complex in nature and that, therefore, she did not believe that medical-

expert testimony was required to establish the standard of care or "[t]he

causative relationship between" her injuries and the acts or omissions of

St. Martin's employees.

On April 4, 2023, Callens filed a motion to strike the affidavit of

Britton that St. Martin's had submitted in support of its summary-

judgment motion. Citing excerpts from Britton's deposition, Callens

contended that there was an issue of fact as to whether Britton had

practiced in the same discipline or school of practice during the year

preceding the date of the alleged breach of the standard of care. Callens

argued that doubt about whether Britton actually had cared for patients

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in the year preceding when Callens sustained her injuries meant that

"his affidavit should be stricken and he should be disqualified from

testifying as an expert witness."

On the following day, April 5, 2023, St. Martin's filed a response to

the motion to strike in which it contended that Callens had "completely

ignore[d] the testimony of Mr. Britton himself in which he testified that

he provided hands on care to residents in nursing homes."

On April 12, 2023, the circuit court entered an order in which it

denied Brookdale's summary-judgment motion. On the same date, the

circuit court entered an order in which it granted the summary-judgment

motion filed by St. Martin's; that order did not explain the circuit court's

reasoning for its decision. Also on April 12, 2023, the circuit court entered

an order denying Callens's motion to strike the affidavit submitted by

Britton.

On May 24, 2023, Callens filed her first notice of appeal. However,

on August 9, 2023, this Court's Clerk's Office issued an order pursuant

to Foster v. Greer & Sons, Inc., 446 So. 2d 605 (Ala. 1984), in which it

notified the circuit court that Callens's claims against Brookdale

appeared to remain pending before the circuit court and, therefore, that

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Callens had not appealed from a final judgment. Accordingly, the case

was remanded to the circuit court to take one of the following actions

within 14 days: (1) to enter a Rule 54(b), Ala. R. Civ. P., order or (2) to

adjudicate the pending claims against Brookdale. If no action was taken

within the given period, the remand order stated, the appeal would be

dismissed. On September 15, 2023, the Clerk's Office issued an order

observing that this Court had received no response to the May 24, 2023,

remand order, and so Callens's appeal was dismissed for lack of

jurisdiction because it arose from a nonfinal judgment.

On January 19, 2024, Callens and Brookdale informed the circuit

court that those parties had reached a settlement agreement.

Subsequently, on February 12, 2024, Callens and Brookdale filed a "Joint

Stipulation of Dismissal" that requested a dismissal of Callens's claims

against Brookdale. On February 28, 2024, the circuit court entered an

order dismissing, with prejudice, Callens's claims against Brookdale.

On the same date, February 28, 2024, the circuit court entered a

final order disposing of Callens's claims against St. Martin's based on its

previous determination that St. Martin's was entitled to a summary

judgment. On April 9, 2024, Callens appealed.

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II. Standard of Review

"We review a summary judgment de novo. Potter v. First
Real Estate Co., 844 So. 2d 540, 545 (Ala. 2002) (citing
American Liberty Ins. Co. v. AmSouth Bank, 825 So. 2d 786
(Ala. 2002)).

" ' "We apply the same standard of review the trial
court used in determining whether the evidence
presented to the trial court created a genuine issue
of material fact. Once a party moving for a
summary judgment establishes that no genuine
issue of material fact exists, the burden shifts to
the nonmovant to present substantial evidence
creating a genuine issue of material fact.
'Substantial 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.'
In reviewing a summary judgment, we view the
evidence in the light most favorable to the
nonmovant and entertain such reasonable
inferences as the jury would have been free to
draw." '

"844 So. 2d at 545 (quoting Nationwide Prop. & Cas. Ins. Co.
v. DPF Architects, P.C., 792 So. 2d 369, 372 (Ala. 2000))
(citations omitted).

"Summary judgment is appropriate only when there is
no genuine issue of any material fact and the moving party is
entitled to judgment as a matter of law. Rule 56(c)(3), Ala. R.
Civ. P."

Hooper v. Columbus Reg'l Healthcare Sys., Inc., 956 So. 2d 1135, 1139

(Ala. 2006).

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III. Analysis

Callens presents two arguments in seeking a reversal of the circuit

court's summary judgment in favor of St. Martin's. First, Callens argues

that she was not required to present medical-expert testimony to

establish a breach of the standard of care or the causation of her injuries

because, she says, "[t]he care … which Callens received at St. Martin's

was routine custodial care not involving complex medical procedures or

care." Callens's brief, p. 9. In making that argument, Callens seeks to

take refuge in the so-called "layman" exception that sometimes applies in

medical-malpractice cases.

" 'To maintain a medical-malpractice action,
the plaintiff ordinarily must present expert
testimony from a "similarly situated health-care
provider" as to (1) "the appropriate standard of
care," (2) a "deviation from that standard [of care],"
and (3) "a proximate causal connection between
the [defendant's] act or omission constituting the
breach and the injury sustained by the plaintiff."
Pruitt v. Zeiger, 590 So. 2d 236, 238 (Ala. 1991)
(quoting Bradford v. McGee, 534 So. 2d 1076, 1079
(Ala. 1988)). The reason for the rule that
proximate causation must be established through
expert testimony is that the issue of causation in a
medical-malpractice case is ordinarily "beyond 'the
ken of the average layman.' " Golden v. Stein, 670
So. 2d 904, 907 (Ala. 1995), quoting Charles W.
Gamble, McElroy's Alabama Evidence, §
127.01(5)(c), p. 333 (4th ed. 1991). The plaintiff
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must prove through expert testimony "that the
alleged negligence 'probably caused the injury.' "
McAfee v. Baptist Med. Ctr., 641 So. 2d 265, 267
(Ala. 1994).'

"Lyons v. Walker Reg'l Med. Ctr., 791 So. 2d 937, 942 (Ala.
2000). It is well settled that there is an exception to the rule
requiring expert testimony ' "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) (quoting Dimoff v.
Maitre, 432 So. 2d 1225, 1226-27 (Ala. 1983)); see also
Anderson v. Alabama Reference Labs., 778 So. 2d 806 (Ala.
2000).

"The following situations have been recognized as
exceptions to the general rule that the plaintiff in a medical-
malpractice action must proffer independent expert medical
testimony:

" ' "(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." '

"Allred v. Shirley, 598 So. 2d 1347, 1350 (Ala. 1992) (quoting
Holt v. Godsil, 447 So. 2d 191, 192-93 (Ala. 1984) (citations

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omitted in Allred)); see also Anderson v. Alabama Reference
Labs., supra.

"In Ex parte HealthSouth Corp., 851 So. 2d 33 (Ala.
2002), this Court explained that the list of exceptions in Allred
to the general rule requiring expert testimony was illustrative
and not exclusive. The Court went on to explain that the first
two examples were related to those categories of cases in
which the lack of skill is so apparent as to be understood by a
layperson and required only common knowledge and
experience to understand it. The Court noted that the third
and fourth examples set out in the list of exceptions had
nothing to do with evidence within the common knowledge of
the jury, because those exceptions to the rule requiring the
proffer of expert testimony are where an authoritative
treatise is offered or the plaintiff is a medical expert qualified
to evaluate the health-care provider's allegedly negligent
conduct.

"The HealthSouth Court went on to 'reformulate' the
exceptions to the general rule requiring expert testimony in
medical-malpractice actions as follows:

" '[T]o 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,' " [Tuscaloosa Orthopedic Appliance Co. v.]
Wyatt, 460 So. 2d [156] at 161 [(Ala. 1984)]
(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 [v. Alabama
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Reference Labs.], 778 So. 2d [806] at 811 [(Ala.
2000)], or is himself or herself a qualified medical
expert.'

"851 So. 2d at 39. The Court's reformulation of categories in
HealthSouth essentially clarifies the exceptions to the general
rule requiring expert testimony in medical-malpractice
actions by emphasizing in the first exception as reformulated
that there are situations where the lack of skill is so apparent
as to be understood by a layperson, thereby requiring only
common knowledge and experience to understand it, and that
further the list of examples of such situations was not
exhaustive but merely set out examples of possible situations.
In the second exception as reformulated, the Court simply
combines the use of an authoritative treatise and the
plaintiff's own testimony as a medical expert as the second
exception to the general rule."

Collins v. Herring Chiropractic Ctr., LLC, 237 So. 3d 867, 870-71 (Ala.

2017) (footnote omitted; emphasis added).

Essentially, Callens argues that the lack of skill exhibited by nurses

at St. Martin's in caring for her was so apparent that only common

knowledge and experience was necessary to understand it. As Callens

puts it:

"Quite literally, a staff member was wiping Callens's backside
and pushing on her hip that was operated on twice within
days of each other at Grandview Hospital. Callens repeatedly
tells [the nurse from] St. Martin's to stop pushing on her hip
because it was going to break again, [a] St. Martin's staff
member repeatedly tells [Callens] to 'hush,' and her fragile
81-year-old hip is reinjured for the third time within days of
the first surgery."
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Callens's brief, p. 9.

Callens likens the circumstances in her case to the situation

presented in Ex parte HealthSouth Corp., 851 So. 2d 33 (Ala. 2002):

"In HealthSouth, the plaintiff was receiving inpatient
rehabilitation after back surgery. She was placed in a bed
with rails and was instructed not to get up without assistance
from a nurse. While in bed, the plaintiff needed to use the
restroom and rang for the nurse. The plaintiff waited between
30 minutes and an hour, but the nurse did not come. Unable
to wait any longer, the plaintiff tried to get up on her own.
When she placed weight on her left leg, it gave way and she
fell, fracturing her hip. This Court held that expert testimony
was unnecessary to establish that the nurse breached the
standard of care …."

McGill v. Szymela, 330 So. 3d 453, 461 (Ala. 2020) (plurality opinion).

Callens also notes the distinction made in HealthSouth between medical

care and custodial care:

" ' "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
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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 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." '

"McGraw [v. St. Joseph's Hospital], 200 W. Va. [114,] 121, 488
S.E.2d [389,] 396 [(1997)] (quoting Cramer v. Theda Clark
Memorial Hospital, 45 Wis. 2d 147, 149-50, 172 N.W.2d 427,
428 (1969) (citations omitted) ([second] emphasis added in
McGraw)). In this case, 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."

851 So. 2d at 39 (first emphasis added). Callens contends that the nurses

at St. Martin's were dispensing custodial care, not medical care, when

she sustained her injuries.

Callens's argument has a surface appeal to it. The problem is that,

as St. Martin's observes, Callens was not an "ordinary" patient. St.

Martin's brief, p. 19. As the rendition of facts relates, Callens had a left-

hip-replacement surgery on September 23, 2019. Then, on October 3,

2019, while Callens was at Brookdale, she slipped and fell in the
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bathroom and broke her left hip again, as well as her left femur. On

October 7 and 8, 2019, Callens underwent surgery to help repair her

broken hip and broken leg. She was also diagnosed with C. diff., which

caused Callens to have further medical issues. It was in that condition

that Callens arrived at St. Martin's. Dr. Jones, Callens's surgeon, had

advised St. Martin's that Callens was permitted to put as much weight

as she was comfortable with on her left leg but that St. Martin's should

"maintain anterior and posterior hip precautions and [have Callens] wear

[a] long leg immobilizer in bed and for transfers." 2

As St. Martin's notes, "[t]here is nothing routine about turning and

repositioning a patient like Callens." St. Martin's brief, p. 20. Callens

herself testified that the St. Martin's nurses were bathing her backside.

Doing so required repositioning Callens while Callens wore the long leg

immobilizer. Performing such tasks for a patient with Callens's

conditions required the nurses to employ certain techniques and care.

Such techniques and care are not within the knowledge and experience

2St. Martin's observes that, in her deposition, St. Martin's physical

therapist Christi Espy testified that a long leg immobilizer is " 'a Velcro
brace that keeps the knee straight, and it goes from the hip to the ankle,
with -- [Callens] did not have a knee injury, but it is used to help maintain
a hip precaution.' " St. Martin's brief, p. 19 n.8.
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of an ordinary layperson. The mere fact that Callens, in her fragile

condition, was injured in the course of the care and treatment being given

to her by the St. Martin's nurses does not, by itself, constitute substantial

evidence of medical negligence. See, e.g., Watterson v. Conwell, 258 Ala.

180, 183, 61 So. 2d 690, 692 (1952) ("A showing of an unfortunate result

does not raise an inference of culpability.").

Callens's argument amounts to contending that the St. Martin's

nurses simply should have been gentler while they bathed her, but that

assumes what kind of care was required to complete the tasks being

performed by the St. Martin's nurses. What position did Callens need to

be in to properly perform a bath? How much pressure needed to be, and

could be, applied to Callens's fragile body in order to clean her? Did the

long leg immobilizer require a different technique than ordinarily would

be employed for bathing a patient's backside? Those are just some of the

questions that the common knowledge and experience of a layman cannot

answer. In short, expert testimony was required to illuminate whether

the St. Martin's nurses should have performed the care and treatment

being given to Callens in a different manner and whether such

differences would have prevented Callens from sustaining another injury

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to her left hip. Callens failed to present expert testimony that would

establish the standard of care required to be provided by St. Martin's

nurses and that would establish " 'a proximate causal connection between

the [health-care provider's] act or omission constituting the breach and

the injury sustained by the plaintiff.' " Rivard v. University of Alabama

Health Servs. Found., P.C., 835 So. 2d 987, 988 (Ala. 2002) (citation

omitted). Therefore, the circuit court did not err in entering a summary

judgment in favor of St. Martin's.

Even though the foregoing conclusion constitutes a sufficient

ground to affirm the circuit court's judgment, we will, nonetheless,

address Callens's second argument. Callens contends that the circuit

court erred in denying her motion to strike the affidavit of Britton, the

medical expert who testified on behalf of St. Martin's. Specifically,

Callens argues that Britton did not qualify as a similarly situated health-

care provider. Callens relies upon § 6-5-548(b), Ala. Code 1975, which

defines a "similarly situated health care provider" 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.

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"(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."

Callens does not dispute that Britton meets the first two elements

of the foregoing definition. She argues that "[t]he trial court record was

not clear as to whether Britton had practiced in the same discipline or

school of practice during the year preceding Callens's injuries at St.

Martin's." Callens's brief, p. 23. Callens says the record is unclear

because Britton was hired by St. Martin's in September 2021 as

"Administrator and Chief Operating Officer," which, she says, is an

administrative position. Callens then speculates that Britton's previous

position as "Director of Nursing" at a long-term care facility -- during the

year preceding Callens's injuries -- also must have primarily involved

administrative duties. However, Callens's speculation does not create an

issue of fact with respect to Britton's qualifications as a similarly situated

health-care provider.

Moreover, Callens is simply incorrect that the record was unclear

concerning whether Britton had practiced as a registered nurse during

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the year that preceded the acts that Callens alleges caused her injuries.

Britton's affidavit unequivocally stated that he had "worked in long-term

care as a nurse providing hands on care to residents of nursing homes in

the years preceding and following the time of Ms. Callens's residency at

St. Martin's" and that he possessed experience "providing and overseeing

care for rehabilitation residents like Ms. Callens for many years prior to

Ms. Callens's admission to St. Martin's, while she was a resident at St.

Martin's, and after she was a resident at St. Martin's." (Emphasis added.)

That is not unclear testimony: Britton testified that he had provided

similar care to patients like Callens in the year before Callens's stay at

St. Martin's. Therefore, the circuit court did not err in denying Callens's

motion to strike Britton's affidavit on the ground that he purportedly was

not a qualified medical expert.

Callens also complains that Britton "never established the

applicable standard of care." Callens's brief, p. 28. Because Britton never

explicitly described the standard of care, Callens argues, "the burden

should have never shifted to Callens, the nonmovant, to present

substantial evidence from a similarly situated [health-care] provider as

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to what actions from St. Martin's nursing staff breached the standard of

care causing Callens's hip injuries." Id., p. 31.

As St. Martin's notes, Callens's argument misunderstands the

burden-shifting process at the summary-judgment stage in a medical-

malpractice case. "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 plaintiff's burden of proof." Anderson v. Alabama Reference

Lab'ys, 778 So. 2d 806, 811 (Ala. 2000). In other words, St. Martin's did

not have the burden of establishing the applicable standard of care and

the breach of that standard; that burden was on Callens. As the

summary-judgment movant, St. Martin's was allowed to point out that

Callens's evidence "failed to establish an essential element of her prima

facie case" without having to establish the standard of care itself. Prowell

v. Children's Hosp. of Alabama, 949 So. 2d 117, 128 (Ala. 2006). That is

exactly what St. Martin's did: it highlighted the fact that Callens had

failed to submit testimony from a medical expert detailing the applicable

standard of care, the specific breach thereof, and medical causation of

Callens's injuries. Callens did not overcome those deficiencies in her

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prima facie case, and, therefore, St. Martin's was entitled to a summary

judgment.

IV. Conclusion

Callens's case did not present the type of "situation[] where the

lack of skill is so apparent as to be understood by a layperson, thereby

requiring only common knowledge and experience to understand it."

Collins, 237 So. 2d at 871. Thus, Callens was required to establish by

expert testimony: (1) the appropriate standard of care, (2) a breach of the

standard of care, and (3) a proximate causal connection between the acts

or omissions of St. Martin's nurses and the injuries sustained by Callens.

See Prowell, 949 So. 2d at 126. Callens did not submit any such expert

testimony. Therefore, the circuit court correctly entered a summary

judgment in favor of St. Martin's on all of Callens's claims. The circuit

court also correctly declined to strike the affidavit of Britton, the St.

Martin's medical expert, because Britton satisfied the qualifications of a

"similarly situated health care provider" enumerated in § 6-5-548(b).

Thus, the circuit court's judgment is due to be affirmed.

AFFIRMED.

Shaw, J., concurs.

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Mitchell, J., concurs in part and concurs in the result, with opinion,

which Parker, C.J., and Bryan, J., join.

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MITCHELL, Justice (concurring in part and concurring in the result).

The Jefferson Circuit Court entered summary judgment in favor of

the Episcopal Foundation of Jefferson County d/b/a St. Martin's In-The-

Pines ("St. Martin's") concerning Betty Callens's claims of negligence,

wantonness-willfullness, battery, and medical malpractice.

Summary judgment was appropriate because Callens failed to

present expert testimony from a "similarly situated health-care provider"

to establish (1) the applicable standard of care, (2) breach of that

standard, and (3) proximate cause -- a prerequisite to maintain a

medical-malpractice action. See Pruitt v. Zeiger, 590 So. 2d 236, 238 (Ala.

1991). Callens also failed to demonstrate that her case falls under the

"layman" exception, which would otherwise excuse a plaintiff from

proffering expert testimony. Tuscaloosa Orthopedic Appliance Co. v.

Wyatt, 460 So. 2d 156, 161 (Ala. 1984) (holding that expert testimony is

not required in cases in which the " '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' "). Accordingly, I concur with

the main opinion in that holding.

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I concur in the result only as to the discussion of the circuit court's

decision to deny Callens's motion to strike Michael Britton's affidavit. As

the main opinion notes, Callens's failure to proffer expert testimony

without meeting the layman exception "constitutes a sufficient ground to

affirm the circuit court's judgment." __ So. 3d at __. Consequently, the

discussion of Britton's affidavit is not necessary to decide this appeal.

Parker, C.J., and Bryan, J., concur.

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