Rel: October 4, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern 

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SUPREME COURT OF ALABAMA

SPECIAL TERM, 2024

_________________________

SC-2023-0294

_________________________

Frances Koe, M.D., and Wills Valley Family Medicine, LLC

v.

Donna Ratliff, as personal representative of the Estate of Rhoda 

Gail McBride, deceased

Appeal from DeKalb Circuit Court

(CV-18-900266)

SELLERS, Justice.1

1This case was originally assigned to another Justice on this Court; 

it was reassigned to Justice Sellers on August 21, 2024.
SC-2023-0294

2

Donna Ratliff, as the personal representative of the estate of Rhoda 

Gail McBride, deceased, commenced a wrongful-death medicalmalpractice action in the DeKalb Circuit Court against Frances Koe, 

M.D., and Wills Valley Family Medicine, LLC ("Wills Valley"). A jury 

returned a verdict in favor of Dr. Koe and Wills Valley. The trial court, 

however, entered a judgment granting Ratliff's motion for a new trial and 

vacated the jury's verdict. Dr. Koe and Wills Valley appealed. We 

reverse the trial court's judgment.

On November 3, 2016, McBride sought treatment for leg pain at a 

medical clinic operated by Wills Valley. McBride's daughter, Ratliff, 

attended the appointment with McBride. Ratliff testified that McBride 

had lived with her at that time but that McBride had been able to handle 

most of her own medical decisions, had handled her own medications, had 

had her own transportation, and had been very independent until she 

had developed the leg pain. Ratliff testified that she had attended some, 

but not all, of McBride's medical appointments. However, the evidence 

indicates that McBride authorized Ratliff to communicate with healthcare providers regarding McBride's care and to allow Ratliff to be 

counseled on McBride's behalf regarding medication.
SC-2023-0294

3

A nurse practitioner employed by Wills Valley, Brandi Ware, 

referred McBride to an imaging center for an ultrasound, which took 

place on December 2, 2016. The ultrasound revealed that McBride was 

suffering from a blood clot. Ware consulted with Dr. Koe regarding the 

blood clot, and Dr. Koe instructed that McBride was to be prescribed 

Coumadin, a blood thinner. According to Dr. Koe, she told Ware that 

McBride would need to have her blood tested promptly for thinness and 

would possibly need to do so every week thereafter. Ware had a medical 

assistant employed by Wills Valley, Summer Gilreath, call McBride on 

her telephone to inform her of the diagnosis and that she needed to take 

Coumadin and come in for a blood test at the beginning of the next week. 

Ratliff's testimony suggests that she answered McBride's telephone.

Although Gilreath testified that she did not specifically remember her 

conversation with Ratliff, she stated that she would have followed 

established protocol, which called for her to relay to patients that 

Coumadin is a blood thinner that can cause bleeding, that patients are to 

follow up a week after starting Coumadin, and that weekly blood tests 

are necessary to test the thickness of a patient's blood while taking the 

medication. Ratliff, however, denied that Gilreath had told her that 
SC-2023-0294

4

McBride would need weekly blood tests. There is no evidence indicating 

that Dr. Koe or nurse practitioner Ware spoke with McBride or Ratliff

about Coumadin or the need for blood tests.2

After her telephone conversation with Gilreath, Ratliff dropped 

McBride off at their home and went to a pharmacy to retrieve the 

Coumadin. Pharmacist Andrea Ashley dispensed McBride's Coumadin 

prescription. Ratliff claimed that she had asked Ashley whether there 

was anything Ratliff needed to know about the medication because 

McBride had never taken it. Although Ashley did not specifically 

remember her conversation with Ratliff, her standard practice would 

have been to inform patients that Coumadin is a blood thinner with a 

high risk of causing bleeding; to instruct patients that they should not 

take certain medications, such as NSAIDs, with Coumadin; to instruct 

2As Dr. Koe and Wills Valley put it in their briefing to this Court, 

Ratliff "attempted to insulate McBride from Ratliff's communications 

with healthcare providers when ... seeking post-trial relief from the jury's 

verdict." Dr. Koe and Wills Valley's reply brief at 3. She makes the same 

attempt on appeal. It appears, however, that it was undisputed during 

the trial that Ratliff was McBride's authorized agent for purposes of 

receiving information regarding her health care and prescription 

medications. It does not appear that there was ever any objection lodged 

during the trial directed at the relevancy of communications between 

health-care providers and Ratliff on behalf of McBride. Indeed, Ratliff 

herself relied extensively on those communications.
SC-2023-0294

5

patients to stay aware of bleeding and to control bleeding if it occurs; and 

to ask patients whether they have a follow-up appointment with their

doctors. Ashley, however, admitted that any "medical advice" would have 

needed to come from McBride's doctors and that McBride's doctors would 

have been responsible for setting up the necessary blood tests. For her 

part, Ratliff testified that she was never informed that Coumadin is a 

blood thinner or about the necessity for regular blood tests. 

Ashley also testified that her standard practice included stapling a 

medication guide, which is required by law, to the prescription bag. 

Coumadin's medication guide contains numerous "black box" warnings

regarding Coumadin, including the possibility of "very bad and 

sometimes deadly bleeding," and advises of the need for a test that 

measures whether a patient's blood has become too thin. Specifically, the 

guide states, among other directives:

"You will need to have your blood work (PT/INR) checked 

while you take this drug. This is important to make sure the 

drug works right and to check your risk of bleeding. Have 

your PT/INR checked as you have been told by your doctor or 

other healthcare provider. If you are not sure when you need 

to have your PT/INR checked, call your doctor or other 

healthcare provider."
SC-2023-0294

6

The Coumadin prescription bottle specifically instructs users of the 

medication to review the medication guide. Ratliff acknowledged that a 

medication guide could have been stapled to the prescription bag, but she

claimed that she did not remember seeing it. Ratliff also testified that 

she never gave the prescription bag or a medication guide to McBride.

On December 6, 2016, consistent with Wills Valley's protocol that 

Coumadin patients follow up in a week, Ratliff took McBride for a blood

test at Wills Valley's medical clinic. Gilreath testified that she could not 

recall whether she or another medical assistant had collected McBride's 

blood on that day. According to Gilreath, regardless of who worked with

McBride, each of the medical assistants would have followed the same 

protocol to inform McBride that the purpose of the blood test was to check 

the thickness of her blood and that it was important to return the 

following week for an additional blood test. 

Dr. Koe testified that the standard for testing a patient who has

been prescribed Coumadin varies based on the patient's initial test 

results. Dr. Koe testified that, after a patient's first blood test, her staff 

would "usually tell them when to return" and that, in McBride's case, "we 

needed to tell [McBride] she needed to come back in a week." Dr. Koe 
SC-2023-0294

7

explained that further testing would depend on the thinness of the 

patient's blood and that patients did not need to make specific 

appointments in order to obtain additional blood tests. Based on her and 

her staff's standard procedure, Dr. Koe testified that she was confident

that McBride had been instructed to return in a week for another blood 

test, and Gilreath testified that she did not think it possible that McBride 

had not been so advised. Ratliff, however, testified that she and McBride 

left after McBride's blood had been collected and that no one had told her 

or McBride of the need to return for more testing.

Ratliff testified that she had not received any results of the blood 

test by December 12, 2016, and that she had called Wills Valley to 

schedule an appointment to learn more about McBride's condition and 

medication. McBride's telephone records indicate that, on December 12, 

two calls were made from McBride's telephone to Wills Valley and that, 

subsequently, two calls were received on McBride's telephone from Wills 

Valley. McBride's medical records contain an entry for December 12 that 

reads as follows: "f/u [follow up] on lab results/blood thinner meds/wants 

more education." McBride was scheduled for an appointment to occur on

December 14, 2016. Dr. Koe testified that the appointment was not 
SC-2023-0294

8

specifically made for the purpose of conducting another blood test, but 

her testimony suggests that a blood test could have been conducted at 

that time. Ratliff testified that she and McBride had been unaware of 

any plan for conducting another blood test on that date. In any event, on 

the day of the appointment, McBride asked Ratliff to cancel her 

appointment because she was suffering from gastrointestinal issues. 

Ratliff called Wills Valley and left a voicemail message canceling the 

appointment. McBride's telephone records indicate that her telephone 

received a subsequent call from Wills Valley the same day.

Ratliff testified that, on December 19, 2016, she received an 

automated telephone message from Wills Valley suggesting that McBride 

had missed an appointment and instructing her to call Wills Valley to 

reschedule. The defendants presented evidence indicating that someone 

from Wills Valley had returned Ratliff's call on December 14, 2016, that 

an appointment had been rescheduled for December 21, 2016, and that 

the December 19 automated telephone message was simply a reminder 

of the December 21 rescheduled appointment. The evidence also 

indicated that someone had "pressed 1" on the telephone that had 

received the automated telephone message, which served to confirm the 
SC-2023-0294

9

appointment for December 21. McBride's grandson, who had lived with 

her and Ratliff during the relevant period, testified that he remembered 

McBride missing the December 14 appointment because of illness and 

that "she said she was going to reschedule." He testified that McBride or 

Ratliff had told him that an appointment had been rescheduled for "close 

to Christmas." For her part, Ratliff testified that she had not been aware 

of an appointment on December 21 and that she did not know who would 

have confirmed that appointment. In any event, McBride did not attend 

an appointment on December 21.

On December 24, 2016, McBride suffered a brain bleed, and she 

died the following day. Testing showed that her blood was too thin and 

that she had suffered from "Coumadin toxicity." Ratliff testified that, if 

she or McBride had known of the need for follow-up blood testing, she 

would have ensured that McBride had had that testing.

The trial court denied Ratliff's motion for a judgment as a matter of 

law on the subject of McBride's alleged contributory negligence and 

agreed to charge the jury on that defense. The trial court instructed the 

jury as follows:

"The defendants, Dr. Koe and Wills Valley Family 

Medicine, say that Rhoda McBride's conduct in failing to 
SC-2023-0294

10

return to the clinic for the December 14th and 21st 

appointments was negligent and that it caused -- and that it 

was a cause of her harm. This is called contributory 

negligence, and it is a defense to the plaintiff's claim that Dr. 

Koe and Wills Valley Family Medicine were negligent. 

Contributory negligence is the failure to use reasonable care 

to prevent harm to one's self. The defense of contributory 

negligence pertains solely to the December 14th and 21st 

appointments.

"To prove this defense, the defendants must prove to 

your reasonable satisfaction by substantial evidence all of the 

following. That Rhoda McBride had knowledge of the 

existence of the December 14th and December 21st 

appointments, that Rhoda McBride appreciated the danger of 

missing the December 14th and December 21st appointments, 

and that Rhoda McBride failed to exercise care for her own 

safety by putting herself in the way of danger. If you find ...

that these three elements were proven by substantial 

evidence, then you would find Rhoda McBride guilty of 

contributory negligence if you determine her negligence 

proximately caused her harm. Alternatively, if you find that 

these three elements were not proven by substantial evidence, 

then you would find that Rhoda McBride was not guilty of 

contributory negligence."

Dr. Koe and Wills Valley refer to this charge as "blending contributory 

negligence and assumption of the risk." Dr. Koe and Wills Valley's brief 

at 36. They appear to suggest that a contributory-negligence defense 

does not necessarily require proof that a plaintiff subjectively 

"appreciated the danger" and chose to put herself in harm's way. Id. 

They note that they asked the trial court to use a pattern jury instruction 
SC-2023-0294

11

providing simply that they had to prove that McBride "was negligent" 

and that her "negligence was a cause of her harm." Id. at 44-45. 

However, they also state in their brief to this Court that the jury 

instruction that was allegedly a "more strenuous definition of what was 

required [in proving contributory negligence]" is "not assigned as error 

here." Id. at 36-37.

The jury returned a verdict for the defendants, and Ratliff filed a 

renewed motion for a judgment as a matter of law on contributory 

negligence and a motion for a new trial. The trial court granted Ratliff's 

motion for a new trial, concluding that the defendants had not presented 

sufficient evidence supporting their contributory-negligence defense and 

that the trial court had, therefore, erred in submitting that defense to the 

jury. According to the trial court:

"[T]he defendants failed to present substantial evidence that 

Ms. McBride's actions deviated from what a reasonably 

prudent person would have done in the same or similar 

circumstances, proximately contributing to her injuries and 

death.

"....

"... Alabama case law is clear: there must be some 

understanding of the danger to determine if the [injured 

person] acted as a 'reasonably prudent person' would act, and 

to determine if that person's actions proximately caused his 
SC-2023-0294

12

or her injury. The Court finds this to be especially true in a 

matter involving complex medical knowledge not known to a 

reasonably prudent layperson.

"Here, the record reveals no substantial evidence that 

Ms. McBride knew or should have known of the importance of 

continued visits to Dr. Koe's office for blood work. Absent 

being told by a medical professional to continue reporting for 

blood work, a reasonably prudent layperson would not know 

to do so. ...

"The only appearance in the record where [McBride] was 

specifically informed to report for blood work -- when Summer 

Gilreath telephoned her the day of Ms. McBride's diagnosis --

Ms. McBride did exactly that. There are no other instances in 

the record where Dr. Koe, or anyone at her direction, told Ms. 

McBride that she needed to continue reporting for blood work.

"....

"... Moreover, even if knowledge or appreciation of 

danger were not required, there is still a lack of substantial 

evidence in the record that Dr. Koe, or anyone at her direction, 

informed Ms. McBride to continue reporting for blood work or 

that anyone in Dr. Koe's office scheduled Ms. McBride for 

additional blood work after the first appointment."

(Emphasis in original.) The trial court subsequently denied the 

defendants' motion to vacate the judgment granting a new trial, and this 

appeal followed.

Ratliff relies on a very deferential standard that has been generally 

applied to a trial court's judgment ordering a new trial. According to 

Ratliff, the trial court's judgment is entitled to a presumption of 
SC-2023-0294

13

correctness and should be affirmed unless the record plainly and palpably 

shows error. See Beauchamp v. Coastal Boat Storage, LLC, 4 So. 3d 443, 

450 (Ala. 2008). However, when a new trial is ordered because a jury's 

verdict allegedly is against the great weight and preponderance of the 

evidence, "[a]n order granting a new trial shall be reversed when on 

review it is perceivable that the jury verdict is supported by the 

evidence." Mitchell v. Johnson, 641 So. 2d 238, 239 (Ala. 1994) (citing 

Jawad v. Granade, 497 So. 2d 471 (Ala. 1986)). 

"'While the "new trial" test is a subjective one ... and is 

measured by a discretionary standard, the range of the trial 

court's discretion, as announced in Jawad [v. Granade, 497 So. 

2d 471 (Ala. 1986)], has been considerably narrowed. Thus, 

the trial court is left with no discretion to grant a new trial on 

a "weight of the evidence" ground, except when the verdict 

and the judgment entered thereon are so against the great 

weight and preponderance of the evidence as to be "plainly 

and palpably" wrong, i.e., "manifestly unjust."'"

Lemley v. Wilson, 178 So. 3d 834, 841 (Ala. 2015) (quoting Richardson v. 

Joines, 574 So. 2d 787, 787-88 (Ala. 1991)).

 According to Ratliff, however, the trial court's judgment in this 

case was based on reasons other than, or in addition to, a determination 

that the evidence did not support the jury's verdict, namely, the alleged

"erroneous submission[ ] of a contributory negligence jury instruction to 
SC-2023-0294

14

the jury." Ratliff's brief at 30. Thus, she says, we must apply the more 

deferential plain-and-palpable-error standard. See Beauchamp, supra.

The trial court ordered a new trial because, it concluded, the 

defendants had failed to submit sufficient evidence supporting their 

contributory-negligence defense and the jury's verdict therefore could not

validly rest upon that defense. The alleged insufficiency of the evidence 

is the reason the trial court gave in opining that it should not have 

submitted the issue of contributory negligence to the jury and that a new 

trial was warranted. Thus, the judgment under review appears most 

akin to one that orders a new trial based on a trial court's conclusion that 

a jury's verdict is not supported by the evidence. See Mitchell, supra

(applying the great-weight-and-preponderance-of-the-evidence standard 

to a trial court's ruling that a new trial was warranted after a jury's 

defense verdict because the defendant had not offered sufficient evidence 

in support of her affirmative defense alleging a "sudden emergency" and, 

therefore, that issue had been incorrectly submitted to the jury). 

Accordingly, we will reverse the trial court's judgment if it is 

"perceivable" that the jury's verdict was supported by the evidence. 

Mitchell, supra. This Court has indicated that a contributory-negligence 
SC-2023-0294

15

defense in a medical-malpractice action must be proven to a jury by 

substantial evidence. Cackowski v. Wal-Mart Stores, Inc., 767 So. 2d 

319, 330 (Ala. 2000). Finally, determinations on questions of law are 

reviewed de novo. Bethel v. Franklin, 381 So. 3d 1121, 1126 (Ala. 2023).

Initially, Dr. Koe and Wills Valley frame one of the disputes in this 

case as whether the trial court erred in concluding that the defendants, 

in order to support their contributory-negligence defense, had to prove 

that "Dr. Koe 'told' or 'informed' McBride to continue reporting for blood 

work" so that she appreciated the danger of failing to have her blood 

regularly tested and the hazardous nature of blood that is too thin. Dr. 

Koe and Wills Valley's brief at 37. According to Dr. Koe and Wills Valley, 

such a requirement implicates assumption of the risk, not contributory 

negligence. See McKerley v. Etowah-DeKalb-Cherokee Mental Health 

Bd., Inc., 686 So. 2d 1194, 1197 (Ala. Civ. App. 1996) (cited by Dr. Koe 

and Wills Valley and stating that, in considering whether assumption of 

the risk may properly be submitted to the jury, the reviewing court 

"look[s] at whether the plaintiff knew of the risk, not whether he should 

have known of it"). They appear to suggest that, regardless of whether 

McBride subjectively knew of the danger of excessive bleeding and of the 
SC-2023-0294

16

danger of failing to obtain further blood tests, there was sufficient 

evidence indicating that, acting reasonably, she should have known of 

those dangers. In support, they point to precedent such as H.R.H. 

Metals, Inc. v. Miller, 833 So. 2d 18 (Ala. 2002), in which the Court 

disapproved of a jury charge on contributory negligence because, in 

requiring proof that the plaintiff "'had knowledge of the existence of the 

dangerous condition'" and conscious "'appreciation of such danger,'" id.

at 26, the charge "engrafted a subjective standard (conscious 

appreciation) onto the contributory-negligence defense," which "involves 

an objective standard," id. at 27. According to the Court in H.R.H. 

Metals, "'it has long been recognized that contributory negligence may 

also be predicated upon the failure to appreciate the danger when there 

is a reasonable opportunity to do so under the circumstances.'" Id.

(quoting Alabama Power Co. v. Mosley, 294 Ala. 394, 398, 318 So. 2d 260, 

263 (1975)) (emphasis omitted). See also Hannah v. Gregg, Bland & 

Berry, Inc., 840 So. 2d 839, 860-61 (Ala. 2002) (noting that, for a court to 

enter a judgment as a matter of law in favor of a defendant based on 

contributory negligence, it must be shown that the plaintiff "put himself 

in danger's way and that the plaintiff had a conscious appreciation of the 
SC-2023-0294

17

danger at the moment the incident occurred," that "[t]he proof required 

for establishing contributory negligence as a matter of law should be 

distinguished from an instruction given to a jury when determining 

whether a plaintiff has been guilty of contributory negligence," and that 

"[a] jury determining whether a plaintiff has been guilty of contributory 

negligence must decide only whether the plaintiff failed to exercise 

reasonable care").

In its judgment awarding Ratliff a new trial, the trial court cited 

Lyons v. Walker Regional Medical Center, Inc., 868 So. 2d 1071 (Ala. 

2003), a medical-malpractice case in which the Court concluded that the 

defendants had presented sufficient evidence in support of their 

contributory-negligence and assumption-of-the-risk defenses. The trial 

court in the present case concluded that, under Lyons, in medicalmalpractice cases, contributory negligence and assumption of the risk 

should be "combined" and require "both a proof of knowledge and 

appreciation of the danger." To be fair, Lyons did involve a "combined" 

jury charge on contributory negligence and assumption of the risk. But 

Lyons did not hold that a defendant in such a case necessarily must prove 

that a plaintiff did indeed have subjective knowledge of the particular 
SC-2023-0294

18

danger at issue in order to rely on a contributory-negligence defense. 

Rather, the Court, after noting that there had been no objection to the 

"combined" charge, concluded that there was sufficient evidence 

justifying the jury's conclusion with respect to that charge.

It is not entirely clear, but it does not appear that Ratliff necessarily 

disagrees with Dr. Koe and Wills Valley that they could support a 

contributory-negligence defense with evidence indicating that McBride 

should have been aware of danger, as she asserts in her brief to this Court 

that the defendants "failed to present substantial evidence of any kind 

showing that Rhonda McBride knew or should have known of some 

danger [in missing two appointments at Wills Valley's medical clinic]." 

Ratliff's brief at 41 (emphasis added). But Ratliff asserts that "[t]here 

must be some knowledge and appreciation of some type of recognizable 

danger to require a layperson patient to have to exercise reasonable care 

to protect herself from harm." Id. (emphasis added).

Based on the precedent that Dr. Koe and Wills Valley cite, it is 

certainly arguable that, in order to reach the jury with their contributorynegligence defense, the defendants did not necessarily have to offer 

evidence indicating that McBride subjectively appreciated danger. But, 
SC-2023-0294

19

regardless, in our view, the evidence indicating that McBride should have 

known of the danger of not following up with appointments at Wills 

Valley's medical clinic, and of the even more specific danger of possibly 

having overly thin blood and failing to obtain further blood tests, is also 

sufficient to create a jury question as to whether she did indeed know of 

those dangers. Dr. Koe told nurse practitioner Ware that, while on 

Coumadin, McBride would need to have her blood tested promptly, and 

possibly weekly, for thinness. Medical assistant Gilreath, who called 

McBride's telephone, testified that her established protocol was to inform 

patients of the nature of Coumadin and to instruct them to follow up in 

a week and that they would likely need to take part in weekly tests of 

blood thickness. Pharmacist Ashley testified that she informs patients 

that Coumadin causes a high risk of bleeding and that she makes them 

aware of the necessity of following up with their doctors. The medication 

guide required by law to accompany a Coumadin prescription warns of 

"very bad and sometimes deadly bleeding" and directs users of the 

medication to have their blood checked for bleeding risk. The Coumadin 

prescription bottle specifically instructs users of the medication to review 

the medication guide. Gilreath testified that, when McBride had her 
SC-2023-0294

20

blood tested in early December 2016, established protocol would have 

been to inform McBride that testing of blood thickness was necessary and 

to direct her to return in a week. The testimony of Dr. Koe, who was 

confident that McBride had been informed of the testing requirements,

confirmed this protocol. Gilreath testified that it was not possible that 

McBride had not been made aware of the need and the reason for the 

blood tests. Testimony, as well as McBride's telephone and medical 

records, show various communications regarding appointments, missed 

appointments, rescheduled appointments, and confirmations of 

appointments dealing with following up on test results, blood-thinner 

medication, and requests for "more education." After McBride’s initial 

blood tests during her December 6, 2016, appointment at Wills Valley's 

medical clinic, there were 9 calls between Wills Valley and McBride's 

telephone, totaling 20 minutes.

"Generally, the issue of whether a person is contributorily negligent 

is a question of fact for the jury." Adams v. Coffee Cnty., 596 So. 2d 892, 

895 (Ala. 1992). The evidence in this case must be "viewed in a light most 

favorable to [the defendants] and all reasonable inferences the jury was 

free to draw are indulged." Lemley, 178 So. 3d at 845. The defendants
SC-2023-0294

21

presented significant evidence, from witness testimony to warning labels, 

indicating that Coumadin is dangerous and that physician consultation 

is part of the prescription and therapy. Ratliff points to many instances 

of her counsel's thorough examination of defense witnesses that was 

clearly aimed at attacking the weight of their testimony. But it is the 

role of the jury to judge the credibility of the witnesses. Flint Constr. Co. 

v. Hall, 904 So. 2d 236, 250 (Ala. 2004). The question is not whether the 

jury had to conclude that McBride was contributorily negligent, but 

whether "it is perceivable that the jury verdict is supported by the 

evidence." Mitchell, 641 So. 2d at 239. Based on the evidence, it is indeed

"perceivable" that the jury could have concluded that McBride was 

contributorily negligent.

There was enough evidence to instruct the jury on contributory 

negligence, and the verdict of the jury was not against the great weight 

and preponderance of the evidence. On that basis, the jury's verdict 

should have been upheld, and the judgment ordering a new trial must be 

reversed.

REVERSED AND REMANDED.

Wise, Bryan, and Mendheim, JJ., concur.
SC-2023-0294

22

Cook, J., concurs specially, with opinion.

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

Parker, C.J., dissents.

Stewart, J., dissents, with opinion.
SC-2023-0294

23

COOK, Justice (concurring specially).

I concur fully with the main opinion's conclusion that the jury's 

verdict in this case should have been upheld because there was sufficient

evidence to instruct the jury on contributory negligence. I write 

separately, however, to clarify for the bench and the bar the standard of 

review that applies in cases such as this one. 

The plaintiff, Donna Ratliff, as the personal representative of the 

estate of Rhoda Gail McBride, deceased, asserted, among other claims, a 

medical-malpractice claim under the Alabama Medical Liability Act ("the 

AMLA"), Ala. Code 1975, § 6-5-480 et seq. and § 6-5-540 et seq., against 

Frances Koe, M.D., and Wills Valley Family Medicine, LLC. 

As the main opinion explains, Ratliff moved for a judgment as a 

matter of law on the basis that the defendants had failed to provide 

sufficient evidence demonstrating that McBride's own negligence had 

contributed to her injuries and eventual death. The DeKalb Circuit Court 

denied Ratliff's motion and charged the jury on that defense.

After the jury returned a verdict in favor of the defendants, Ratliff 

moved for a new trial. In her motion, Ratliff's sole argument was that the 

defendants had not presented sufficient evidence supporting their 
SC-2023-0294

24

contributory-negligence defense and that the trial court had, therefore, 

erred in submitting that defense to the jury.3 The trial court agreed with 

Ratliff, finding that the defendants had "failed to present substantial 

evidence that Ms. McBride's actions deviated from what a reasonably 

prudent person would have done in the same or similar circumstances, 

proximately contributing to her injuries and death." (Emphasis added.) 

It thus concluded that it should not have given the jury an instruction on 

that defense. 

Our Court has previously recognized that the standard of proof 

under the AMLA requires a plaintiff to prove his or her case by 

" '"substantial evidence." '" Cackowski v. Wal-Mart Stores, Inc., 767 So. 

2d 319, 329 (Ala. 2000) (quoting Johnson v. Wagner, 678 So. 2d 782, 783 

(Ala. 1996) (Houston, J., concurring specially), quoting in turn § 6-5-549, 

Ala. Code 1975)). Likewise, as the main opinion correctly notes, "[t]his 

3Likewise, the only argument made by Ratliff on appeal is that 

there was not substantial evidence in support of a finding of contributory 

negligence. And, in her brief, Ratliff appears to agree that this was the 

reason for the trial court's ruling: "The trial court should have entered 

judgment as a matter of law in favor of [Ratliff] on the contributory 

negligence defense, and it properly recognized that substantial evidence 

did not support that defense at trial, which is why it granted a new trial 

in its discretion." Ratliff's brief at 56-57 (emphasis added). 
SC-2023-0294

25

Court has indicated that a contributory-negligence defense in a medicalmalpractice action must [also] be proven to a jury by substantial 

evidence." ____ So. 3d at ____ (citing Cackowski, 767 So. 2d at 330 

(concluding that the defendant "was also required to prove its affirmative 

defense of contributory negligence by substantial evidence")). The 

question of whether substantial evidence was presented in support of a 

medical-malpractice claim or defense is a question of law. See, generally, 

Cackowski, 767 So. 2d at 329-30. As noted by the main opinion, our Court 

reviews questions of law de novo. See Bethel v. Franklin, 381 So. 3d 1121, 

1126 (Ala. 2023). See also Rule 56, Ala. R. Civ. P., and Rule 50, Ala. R.

Civ. P.

However, Ratliff contends that our Court should apply a 

discretionary standard in reviewing the trial court's decision to order a 

new trial in this case. In support of that contention, Ratliff quotes Hill v. 

Cherry, 379 So. 2d 590, 592 (Ala. 1980), for the following proposition: 

"Granting or refusing a motion for new trial rests within the 

sound discretion of the trial court; the exercise of that 

discretion carries with it a presumption of correctness which 

will not be disturbed by this court unless some legal right was 

abused and the record plainly and palpably shows the trial 

court was in error."
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See Ratliff's brief at 29. According to Ratliff, the trial court "properly 

recognized that substantial evidence did not support [the contributorynegligence] defense at trial," Ratliff's brief at 56-57, and, thus, "did not 

exceed its discretion when it granted [her] motion for new trial and set 

aside the tainted jury verdict," id. at 36. 

Contrary to Ratliff's position, the caselaw provided in the main 

opinion and noted above makes clear that the question of whether 

substantial evidence was presented in support of a medical-malpractice 

claim or defense is a question of law that has been resolved by the trial 

court. The resolution of a question of law cannot be reviewed under a 

discretionary standard. The de novo standard of review is the standard 

our Court must apply for questions of law. 

That standard applies whether the movant is the plaintiff or the 

defendant and whether the argument concerns a claim or a defense -- as 

long as the basis for the argument is whether substantial evidence 

existed in support of the medical-malpractice claim or defense. 

Applying, as we must, the de novo standard of review to the 

question of law presented here, the main opinion correctly concludes that 

there was substantial evidence presented in support of the contributory-
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negligence defense and, consequently, in support of the jury's verdict. I 

therefore agree that we must reverse the trial court's judgment ordering 

a new trial. 
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MITCHELL, Justice (concurring in the result).

I concur in reversing the trial court's judgment ordering a new trial. 

But, in my view, the majority opinion's sufficiency-of-the-evidence 

holding alone enables us to decide this appeal, and we should not go into 

contributory negligence, assumption of the risk, or the burden of 

persuasion for those defenses. 

Whether substantial evidence was presented in support of a 

medical-malpractice claim or defense is a question of law. Cackowski v. 

Wal-Mart Stores, Inc., 767 So. 2d 319, 329-330 (Ala. 2000). And we 

review questions of law de novo. See Bethel v. Franklin, 381 So. 3d 1121, 

1126 (Ala. 2023). In doing so, we afford great deference to a jury's 

determination and will reverse a trial court's judgment ordering a new 

trial "when on review it is perceivable that the jury verdict is supported 

by the evidence." Mitchell v. Johnson, 641 So. 2d 238, 239 (Ala. 1994) 

(citing Jawad v. Granade, 497 So.2d 471 (Ala.1986)); see also Beauchamp 

v. Coastal Boat Storage, LLC, 4 So. 3d 443, 450 (Ala. 2008). 

I agree with the majority opinion that when we view the evidence 

here in a light most favorable to the jury verdict, "it is perceivable that 

[it] is supported." Mitchell, 641 So. 2d at 238; see also __ So. 3d at __. At 
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trial, Frances Koe, M.D., and Wills Valley Family Medicine LLC, the 

defendants, offered the following evidence: (1) the telephone calls 

between Rhoda McBride and Wills Valley after her first blood-test 

results, thus permitting the jury to find that McBride knew to return for 

more blood tests; (2) scheduled appointments for which McBride failed to 

appear after she had been prescribed Coumadin; and (3) the pharmacist's 

testimony of her standard practice to warn patients of Coumadin's side 

effects. This constituted sufficient evidence by which the jury could find 

that McBride was contributorily negligent in causing her suffering from 

Coumadin toxicity.

But I part ways with the majority opinion because it goes further 

by discussing this Court's holding in Lyons v. Walker Regional Medical 

Center, Inc., 868 So. 2d 1071 (Ala. 2003); the possible intersection of 

assumption of the risk and contributory negligence; and whether a 

successful contributory-negligence defense requires showing that a 

plaintiff had subjective knowledge of a dangerous condition. See __ So. 

3d at __. None of that discussion is necessary because, as the opinion 

itself notes, "the evidence indicating that McBride should have known of 

the danger of not following up with appointments ... [was] ... sufficient to 
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create a jury question as to whether she did indeed know of the danger." 

__ So. 3d at __. I'm concerned that the extraneous discussion of 

contributory negligence and assumption of the risk has the potential to 

lead future litigants astray analytically, to cause confusion for the trial 

courts, and to splinter our caselaw. Consequently, I am able to concur in 

the result only. 
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STEWART, Justice (dissenting).

"[T]his Court has recognized the presumption that a trial judge, 

who has the advantage of observing all the parties involved in the trial, 

including the jury and its reactions, is in a better position [than an 

appellate court] to decide whether a verdict is flawed." Campbell v. 

Kennedy, 275 So. 3d 507, 516 (Ala. 2018)(citing Daniels v. East Alabama 

Paving, Inc., 740 So. 2d 1033, 1049 (Ala. 1999)).

In vacating the jury's verdict and granting a new trial, the trial 

court did not consider whether the evidence was sufficient to support the 

jury's verdict.4 Instead, the trial court expressly determined that the jury 

should not have had the opportunity to consider the contributorynegligence defense because the defendants had not presented substantial 

evidence in support of that defense. Because the trial court granted a new 

trial "on grounds other than a finding that the verdict is against the great 

weight or preponderance of the evidence, this Court's review is limited," 

4The main opinion construes the trial court's judgment granting a 

new trial as determining that the evidence was insufficient to support 

the jury's verdict, and, thus, it views the evidence in the light most 

favorable to the defendants, finding that the jury's verdict "was not 

against the great weight and preponderance of the evidence." ___ So. 3d 

at ___.
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and the judgment should be reversed only if a " '"legal right [was] abused 

and the record plainly and palpably shows the trial judge to be in error." '"

Baptist Med. Ctr. Montclair v. Whitfield, 950 So. 2d 1121, 1125-26 (Ala. 

2006). 

To submit a contributory-negligence defense to a jury in a medicalmalpractice case, a defendant must present substantial evidence showing 

that the plaintiff had, or should have had, both (1) knowledge of the 

dangerous condition and (2) an appreciation of the danger under the 

surrounding circumstances and that (3) in light of that knowledge and 

appreciation, the plaintiff failed to exercise reasonable care, by placing 

himself or herself in the way of danger. See Imperial AluminumScottsboro, LLC v. Taylor, 295 So. 3d 51, 62 (Ala. 2019)(plurality 

opinion); Lyons v. Walker Reg'l Med. Ctr., 791 So. 2d 937, 944 (Ala. 2000); 

and Cackowski v. Wal-Mart Stores, Inc., 767 So. 2d 319, 327 (Ala. 2000).

I do not agree that there was substantial evidence indicating that 

Rhoda McBride knew or should have known of the risks associated with 

Coumadin and the necessity for repeated testing to warrant submission 
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of that issue to the jury.5 Although there was some evidence suggesting 

that Donna Ratliff had been presented with information that could have 

put her on notice of the dangers associated with Coumadin and of the 

importance of following up for blood testing, the defendants did not 

present substantial evidence indicating that McBride -- the patient here 

alleged to have been contributorily negligent -- was aware of the 

information given to Ratliff. Nor can I conclude, based on the specific 

circumstances presented in this case, that the jury could have imputed 

Ratliff's knowledge of the dangers of Coumadin to McBride.6 Thus, the 

trial court's decision to grant a new trial was not plainly or palpably 

5There was no direct evidence that McBride had an appreciation of 

the dangers of Coumadin and of the failure to obtain regular blood 

testing. The evidence indicated that McBride had not received the 

medication guide provided with the Coumadin bottle, and, although there 

was some evidence indicating that a medical assistant may have 

informed McBride that she needed to return for further blood testing, 

there was not substantial evidence indicating that McBride had been 

directly informed of the specific importance of returning for such testing. 

Indeed, neither Dr. Koe, the medical assistant, nor the pharmacist could 

recall any interaction with McBride. 

6The question of agency was not raised at trial or presented to the 

jury, and the agency of a family member is not presumed. See, e.g., J.C. 

Jacobs Banking Co. v. Campbell, 406 So. 2d 834 (Ala. 1981). 
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wrong, see Whitfield, supra, and it should be affirmed. Therefore, I 

respectfully dissent.