McGill v. SzymelaAnnotate this Case
Janice and Timothy McGill appealed a circuit court judgment against them in their medical-malpractice lawsuit against Victor Szymela, M.D. The McGills alleged that Dr. Szymela failed to properly perform Janice's temporomandibular-joint total-replacement ("TJR") surgery. Janice sought treatment to relieve her temporomandibular-joint ("TMJ") disorder. Janice had been experiencing clicking and locking of her jaw and excruciating jaw and ear pain. Janice alleged that she experienced distinct, worse pain immediately after the surgery and that the new pain did not resolve with time. She continued to experience popping in her jaw. She alleged that her overbite was exacerbated by the surgery. She also alleged that she could not open her mouth as wide as previously and that she lost sensation in her lips, which diminished her ability to speak clearly. Janice sought treatment from Dr. Michael Koslin, who referred Janice to a pain-management specialist. Ultimately, Janice's providers determined that her pain was unresponsive to conservative treatment. In 2017, Dr. Koslin surgically removed the prosthesis. Several weeks later, Dr. Koslin implanted custom joints. Janice alleged Dr. Koslin's treatment relieved her pain. In March 2016, Janice sued Dr. Szymela, alleging that he breached the standard of care for an oral and maxillofacial surgeon by failing to properly assess the source of Janie's pain or install the prosthesis correctly. The McGills identified Dr. Louis G. Mercuri as one of their expert witnesses regarding oral and maxillofacial surgery. On Dr. Szymela's motion, the trial court ruled that Dr. Mercuri did not qualify as a "similarly situated health care provider" under § 6-5-548(c)(4), Ala. Code 1975, because he had not practiced in Dr. Szymela's specialty within the year preceding Dr. Szymela's alleged breach. Thus, the court excluded Dr. Mercuri as a witness. At the close of all evidence, on Dr. Szymela's motion, the trial court entered a partial judgment as a matter of law ("JML") in favor of Dr. Szymela. The Alabama Supreme Court determined the trial court did not exceed its discretion by excluding the testimony of Dr. Mercuri on the basis that he was not statutorily qualified as an expert. And because the McGills did not present or point to substantial evidence of the standard of care for Dr. Szymela's performance of Janice's TJR surgery, the trial court properly entered a JML on the claims relating to the surgery. Accordingly, judgment was affirmed.