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Date: 08-19-2022

Case Style:

Vivian Nall and Myrus Nall v. Arash Arabi, D.P.M.

Case Number: 1210312

Judge: Mendheim

Court: Supreme Court of Alabama on appeal from the Circuit Court, Tuscaloosa County

Plaintiff's Attorney:

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Defendant's Attorney: Not Available

Description: Tuscaloosa, Alabama personal injury lawyers represented Plaintiffs, who sued Defendant on a medical malpractice negligence theory.

Dr. Arabi is a podiatrist. In 2015, Vivian was being treated by Dr. Arabi for problems she was experiencing with her left foot. The Nalls allege that Dr. Arabi's negligence in his care of Vivian's foot resulted in complications of circulatory compromise and necrosis that caused the amputation of two toes on her foot and resultant permanent injuries. On June 9, 2017, the Nalls commenced an action in the Tuscaloosa Circuit Court against Dr. Arabi and other defendants; Vivian asserted claims of negligence, and Myrus asserted a claim of loss of consortium. During the course of the litigation, the other defendants were voluntarily dismissed for various reasons, leaving Dr. Arabi as the sole remaining defendant.

On July 2, 2020, the circuit court adopted a scheduling order agreed upon by the parties that set the trial date for November 30, 2021. The scheduling order required expert-witness disclosures to be made by March 19, 2021, and depositions for such witnesses to be completed by April 30, 2021. Summary-judgment motions were to be filed no later than August 20, 2021.

On February 23, 2021, Dr. Arabi sat for his deposition. He testified that he was certified by the American Board of Podiatric Medicine ("the ABPM") and that he initially became certified in 2008. The Nalls subsequently disclosed their standard-of-care expert to be Dr. Steven Krych, and he sat for a deposition on April 28, 2021. Dr. Krych testified that he was initially certified in 1993 by the American Board of Podiatric Orthopedics and Primary Podiatric Medicine, which later changed its name to the ABPM, and that he had maintained that certification. He further testified that he was also certified by the American Board of Podiatric Surgery.

On August 20, 2021, Dr. Arabi filed a summary-judgment motion in which he contended that Dr. Krych was not certified by the ABPM and, thus, was not similarly situated to Dr. Arabi. Dr. Arabi argued that, absent Dr. Krych's testimony, the Nalls lacked substantial evidence of a breach of the standard of care by Dr. Arabi. In the motion, Dr. Arabi stated that a search of the ABPM's Web site indicated that Dr. Krych was not certified by that board. Dr. Arabi's counsel then contacted the ABPM directly and confirmed that Dr. Krych was not certified by it. Dr. Arabi
attached to his motion an affidavit from ABPM Executive Director Dr. James Stavosky, in which Dr. Stavosky stated:

"Dr. Steven M. Krych was initially certified on June 30, 1993, and remained board-certified by the American Board of Podiatric Medicine until December 31, 2012. Dr. Krych has not been certified by the American Board of Podiatric Medicine since December 31, 2012.

"Dr. Arash Arabi was initially certified by the American Board of Podiatric Medicine on June 21, 2008, and he has remained board-certified since that time."

On September 20, 2021, the Nalls filed a response in opposition to the summary-judgment motion. They argued that the ABPM should be estopped from denying Dr. Krych's certification or, in the alternative, that the circuit court should defer ruling on the summary-judgment motion until Dr. Krych could resolve the certification issue. The Nalls also argued in the alternative that the circuit court should modify the scheduling order to allow them to name a new standard-of-care expert. The Nalls attached to their response an affidavit from Dr. Krych in which he sought to explain the discrepancy between his belief that he was certified by the ABPM and its current records showing that he was not certified. Dr. Krych stated that because he was a founding member of the American Board of Podiatric Orthopedics and Primary Podiatric Medicine, his 1993 certification stated that it was "Valid Through Founder." When the board changed its name to the ABPM, Dr. Krych's understanding was that he

"would be 'grandfathered' for certification purposes and would be considered as Board Certified by the [ABPM] as long as I met CME [continuing medical education] requirements and paid dues. I continued to do self-assessments every 10 years also. I continued to pay dues for the ABPM and do CME's until 2012, when I was advised by the Executive Director at the time, Dr. Marc Bernard, that I did not need to pay dues or do CME's until 2022 if I took a self-assessment test every 10 years which would be 2022.

"I therefore took no further action for recertification after 2012 and have always understood, believed, and listed myself as Board Certified by the [ABPM]. I was not aware of any information to the contrary and have given numerous depositions and trial testimonies wherein I have, in good faith reliance upon the Board's representation that I would be considered Board Certified by them, testified that I was and am Board Certified by the [ABPM]. I have never once been told or notified that this was not true, and have not had that testimony questioned in prior cases. ...

"... I have never personally received any letters or communications from the [ABPM] about this certification issue and was totally unaware of this certification issue until the affidavit of Dr. Stavosky was filed in the Nall case. I therefore asked the office manager [of the ABPM] if I had to do something to rectify the situation and reinstate my Board Certification by the ABPM and was told that I would need to pay TEN (10) years of dues/fees, and submit evidence of compliance with certification requirements, but that such a process would first have to be submitted to, and approved by, the current Board before I could submit my dues and the required compliance information. I stand ready, willing, able, and qualified to do whatever is required, and am presently awaiting notification from the Board that I can start the process. However, as of the date of this affidavit, I have not received any notification or instructions."

The Nalls also attached to their response a Rule 56(f), Ala. R. Civ. P., affidavit in which the Nalls' counsel asked for additional discovery "concerning all surrounding circumstances applicable to [Dr. Krych's] certification status with the ABPM," information counsel insisted was "critical to establish for the Court that Dr. Krych should qualify as an expert for purposes of this lawsuit."

The circuit court held a hearing on Dr. Arabi's summary-judgment motion. Following that hearing, on December 14, 2021, the circuit court entered a summary judgment in favor of Dr. Arabi, thereby disposing of all the remaining claims in the case. On January 12, 2022, the Nalls filed a postjudgment motion in which they asserted that "the problem with Dr. Krych's certification is essentially a clerical issue. It is undisputed that Dr. Krych was certified by the ABPM, but his certification apparently lapsed without his knowledge after the organization changed its rules about certain members being 'grandfathered' in and a failure by the organization to send notices to Dr. Krych at the correct address." The Nalls again requested more time to allow Dr. Krych to resolve the certification issue. The Nalls also reargued their alternative position of permitting them to substitute another expert in Dr. Krych's place. On January 25, 2022, the circuit court denied the postjudgment motion.

Outcome: Affirmed

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