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02/24/95 EX PARTE DR. JOHN I. KENNEDY AND DR. PAUL

February 24, 1995

EX PARTE DR. JOHN I. KENNEDY AND DR. PAUL R. DEATON (IN RE: PATRICIA ROYSTER, AS DEPENDENT SPOUSE OF JIMMY ROYSTER AND ADMINISTRATRIX OF THE ESTATE OF JIMMY ROYSTER, DECEASED
v.
BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA, ETC., ET AL.)



(Walker Circuit Court, CV-93-397). James C. Brotherton, Trial Judge.

Released for Publication June 25, 1995.

Hornsby, C. J., and Maddox, Almon, Houston, Kennedy, Ingram, and Butts, JJ., concur.

PETITION FOR WRIT OF MANDAMUS

PER CURIAM.

The defendants Dr. John I. Kennedy and Dr. Paul R. Deaton petition this Court for a writ of mandamus directing Judge James C. Brotherton of the Walker Circuit Court to grant their motion to transfer a medical malpractice action against them to the Jefferson Circuit Court.

In May 1993, Patricia Royster, individually and as administratrix of the estate of her husband Jimmy Royster, deceased, filed an action in the Walker Circuit Court against the Board of Trustees of the University of Alabama, *fn1 the Walker County Commission, and several fictitious defendants. She amended the complaint in February 1994 to add Dr. Kennedy and Dr. Deaton as defendants. As amended, the complaint alleged that while employed by the Walker County Commission, Jimmy Royster had contracted a fungal infection in his respiratory system, which the plaintiff says ultimately caused his death, and that Dr. Kennedy and Dr. Deaton had negligently and/or wantonly breached the applicable standard of medical care in treating that infection while Royster was under their care in the University of Alabama at Birmingham Hospital and had thereby contributed to cause the death. Thus, the complaint alleged both a workers' compensation claim *fn2 and a medical malpractice claim.

Dr. Kennedy and Dr. Deaton moved to dismiss the claim against them or, in the alternative, to transfer it to the Jefferson Circuit Court. They argued that pursuant to Ala. Code 1975, § 6-5-546, of the Alabama Medical Liability Act, Walker County was not a proper venue for the medical malpractice claim, because the act or omission complained of, their allegedly negligent medical treatment of Royster, occurred in Jefferson County. Judge Brotherton denied the dismissal and likewise denied the transfer; hence, this petition for a writ of mandamus.

A petition for a writ of mandamus is an appropriate means to challenge a trial Judge's refusal to transfer a case to another judicial circuit. See Ex parte Alabama Power Co., 640 So. 2d 921 (Ala. 1994), and Ex parte Ralston, 519 So. 2d 488 (Ala. 1987). However, the petition will not be granted unless the petitioner makes a clear showing that the trial court erred in refusing the transfer. Ex parte Ralston, supra.

I.

Dr. Kennedy and Dr. Deaton argue that venue in any action against a health care provider alleging a breach of the applicable standard of care is controlled solely by § 6-5-546 and that the trial court erred in failing to apply that section to determine proper venue for the claim against them. The first sentence of § 6-5-546 reads:

"In any action for injury or damages or wrongful death whether in contract or in tort against a health care provider based on a breach of the standard of care, the action must be brought in the county wherein the act or omission constituting the alleged breach of the standard of care by the defendant actually occurred."

The Alabama Medical Liability Act, of which this section is a part, "applies to all actions against health care providers based on acts or omissions occurring after June 11, 1987, and as to such causes of action, shall supersede any inconsistent provision." Ala. Code 1975, § 6-5-552. It is undisputed that Dr. Kennedy and Dr. Deaton are health care providers, that their alleged breach of care occurred after June 11, 1987, and that it occurred in Jefferson County.

In response, Patricia Royster argues that because the Walker County Commission is not a health care provider, § 6-5-546 does not apply to the issue of venue in this action. Royster contends that venue is controlled instead by Rule 82(c), Ala.R.Civ.P., which provides, in part: "Where several claims or parties have been joined, the suit may be brought in any county in which any one of the claims could properly have been brought." Thus, she argues that Walker County is a proper venue for her claim against Dr. Kennedy and Dr. Deaton, because that claim was joined with a workers' compensation claim against the Walker County Commission and Walker County is a proper venue as to the workers' compensation claim.

The venue of actions is governed by statute and, in the event of an inconsistency in the statutory provisions, by Rule 82, Ala.R.Civ.P. Ex parte Lashley, 596 So. 2d 890 (Ala. 1992). Moreover, Amendment 328, § 6.11, Alabama Constitution of 1901, provides that, by passing a general act of statewide application, the legislature may change the rules promulgated by this Court for governing the administration of all courts. The legislature has exercised that power here, enacting § 6-5-546, a general statute of statewide application; § 6-5-545 establishes the rule for determining proper venue for certain kinds of ...


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