
    Mardell S. SCHELL, et al. v. Dr. John C. COLLINS, Jr.
    87-672.
    Supreme Court of Alabama.
    Dec. 9, 1988.
    
      Joseph M. Winter and Michelle B. Rapo-port of Meals, Kirwan, Goger, Winter & Parks, Atlanta, Ga., and Mitchell G. Lattof, Jr., of Lattof & Gardner, Mobile, for appellants.
    W. Boyd Reeves and Edward A. Dean of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellee.
   JONES, Justice.

This appeal is from a summary judgment entered in favor of the defendant, Dr. John C. Collins, Jr., and made final pursuant to Rule 54(b), A.R.Civ.P. This litigation is based on a claim of medical malpractice. The plaintiff, Mardell S. Schell, was injured during a surgical operation to remove her gall bladder. Dr. Collins was not the primary physician caring for Schell, but he assisted during the surgical procedure. Dr. Collins was one of several defendants listed in Schell’s medical malpractice suit.

On November 4, 1987, Dr. Collins filed a motion for summary judgment, supported by his own affidavit and the affidavit of a medical expert. In opposition to the motion, Schell filed the affidavit of a medical expert.

These affidavits addressed the standard of care owed to a patient by a physician assisting in a surgical procedure. The affidavits conflict as to what the standard is within the community and as to whether Dr. Collins met a generally accepted standard. “The general rule in Alabama is that in medical malpractice cases expert medical testimony is required to establish what is and what is not proper medical treatment and procedure.” Powell v. Mullins, 479 So.2d 1119, 1120 (Ala.1985).

Genuine issues of material fact were, therefore, necessarily raised by Schell. Consequently, the motion for summary judgment was due to be overruled, and the judgment must be reversed.

REVERSED AND REMANDED.

TORBERT, C.J., and SHORES and ADAMS, JJ., concur.

HOUSTON, J., concurs specially.

HOUSTON, Justice

(concurring specially).

This action was filed on May 5, 1986; therefore, we must use the “scintilla of evidence” rule in determining whether the trial court erred in granting Dr. Collins’s motion for summary judgment. Was there a scintilla of evidence to support the Schells’ theory of recovery against Dr. Collins, which was that Dr. Collins failed to properly place metallic clips on Ms. Schell’s common bile duct during the cholecystecto-my? Dr. Collins, in his affidavit, stated that at no time did he place any clips of any .type in the body of Ms. Schell during the surgical procedure. This is not contradicted. Likewise, it is not contradicted that Dr. Collins was not Ms. Schell’s surgeon, but assisted Ms. Schell’s surgeon.

The following facts are not disputed: The Thomas Hospital, where the surgery was performed, has a requirement that two physicians be present for all surgery. Dr. Collins and Ms. Schell’s surgeon were the only general surgeons on the staff of that hospital, and one normally acts as the assistant when the other operates on a patient. Prior to the operation, Dr. Collins knew nothing about Ms. Schell’s case other than her name and the procedure to be performed. He had not reviewed her chart, nor is it normal for an assisting surgeon to do so. The first time Dr. Collins saw Ms. Schell was in the operating suite on the morning of her surgery. During the procedure, the operating surgeon did not ask Dr. Collins to confirm the location of the cystic or common duct. The operating physician did not make any comments as to the progress of the procedures as he went along. The operating surgeon made the identification of the cystic and common ducts without requesting assistance from Dr. Collins. The operating surgeon did not verbalize the identification of normal anatomy. Dr. Collins was on the left side of the patient, holding back lap packs on the viscera with two retractors. The incision was on the patient’s right side. The juncture of the cystic and common ducts was not visible to Dr. Collins as the assisting surgeon. Dr. Collins never viewed either the common duct or the cystic duct during Ms. Schell’s surgery. There were no problems with exposure of the field during the operation.

Ms. Schell’s medical expert, Dr. Bussey, had reviewed Ms. Schell’s medical records. I have examined these medical records and I find that Dr. Collins’s name appears only twice, and both times it is with the word “assistant.” Dr. Bussey examined Ms. Schell; however, insofar as Dr. Collins’s liability is concerned, I cannot see what his examination would have revealed. Even so, Dr. Bussey in his affidavit states:

“In his capacity as an assistant surgeon it was as much Dr. Collins’ responsibility as [the operating surgeon’s] to: properly identify the anatomical structures essential to the proper and safe performance of a cholecystectomy; to perform the tests necessary to properly visualize and identify these anatomical structures; to prevent obstruction and any other kind of damage to the common bile duct; to promptly identify any anatomical damage occurring during the surgery and properly correct this damage in order to minimize the injury, the need for subsequent treatment, and the life threatening consequences of the injury.”

Dr. Collins admits that if an assistant surgeon sees something occur that would harm the patient, he should call this to the attention of the operating surgeon; however, during her operation, he did not see anything that would harm Ms. Schell.

Is the responsibility of an assistant surgeon a question of law or of fact? The determination as to the existence vel non of a duty resting upon a defendant is always an issue of law for the trial court and never one for the jury. Alabama Power Co. v. Dunaway, 502 So.2d 726, 731 (Ala.1987).

An assistant surgeon holds a duty to a patient to exercise such reasonable care, diligence, and skill as assistant surgeons in the same general neighborhood ordinarily have and exercise in a like case. Ala.Code 1975, § 6-5-484. This Court has defined “same general neighborhood” as the national medical neighborhood or national medical community of reasonably competent physicians acting in the same or similar circumstances. Drs. Lane, Bryant, Eubanks & Dulaney v. Otts, 412 So.2d 254 (Ala.1982). Dr. Bussey gave expert medical testimony as to what is proper practice for an assistant surgeon. In doing so, he places a higher responsibility on Dr. Collins, as an assistant surgeon in this case, than does the surgeon who performed the surgery, but under our scintilla of evidence rule this made a fact question as to what is “such reasonable care, diligence and skill” as an assistant surgeon would ordinarily have and exercise in a like case.

Therefore, summary judgment was inappropriate.  