## Facts

- In 1971, Betsy Jane Howard consulted Drs. Kermit Mitchell and Joseph Flippen (obstetrician/gynecologists) for bleeding and was diagnosed with a spontaneous abortion at six to eight weeks.
- Howard was typed as Rh negative in 1971; she alleged defendants should have administered RhoGAM after the abortion to prevent development of antibodies to the Rh positive factor.
- Howard had a full-term pregnancy in 1972; the child was initially typed Rh negative, but later testing (after suit was filed) indicated the child was Rh positive.
- In 1974, Howard tested positive for antibodies to the Rh positive factor; that pregnancy ended in a spontaneous abortion.
- In 1981, Howard delivered an infant who died several days later from erythroblastosis fetalis, a condition caused when maternal anti-Rh antibodies cross the placenta and destroy fetal red blood cells.
- Howard sued for medical malpractice and wrongful death, alleging the 1971 failure to give RhoGAM caused antibody formation and thereby caused the 1981 infant’s death.
- Howard’s expert testified RhoGAM after a spontaneous abortion was the accepted practice and would have virtually eliminated the risk of antibody development, but he could not determine when Howard’s antibodies developed and stated it was more likely they developed in connection with the 1972 full-term pregnancy.

## Issues

1. Whether the plaintiff produced at least a scintilla of evidence that the defendants’ failure to administer RhoGAM in 1971 probably caused the infant’s 1981 death, sufficient to defeat summary judgment.

## Decision

- The Alabama Supreme Court affirmed summary judgment for the defendants.
- The court held the plaintiff failed to present a scintilla of evidence that the alleged negligence probably caused the injury.
- The expert testimony left causation as conjectural because it did not selectively support 1971 as the probable source of antibody formation over other plausible causes, particularly the 1972 pregnancy.

## Legal Principles

- In Alabama medical malpractice actions, liability requires more than a mere possibility that negligence caused the injury; there must be evidence that negligence probably caused the injury.
- The “scintilla rule” allows a jury question only if there is a scintilla of evidence of probable causation; it does not permit recovery based on conjecture.
- Evidence that an injury could have occurred in the alleged way is insufficient when the same proof attributes the injury, with equal probability, to another cause.

## Conclusion

Because the plaintiff’s expert could not state that the 1971 failure to administer RhoGAM probably caused antibody formation—indicating other causes were equally or more likely—the plaintiff offered only possibility and conjecture on causation; summary judgment for the physicians was therefore proper.


Howard v. Mitchell, 492 So. 2d 1018 (Ala. 1986)