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Ex parte Tombigbee Healthcare Authority

Supreme Court of Alabama

December 15, 2017

Ex parte Tombigbee Healthcare Authority d/b/a Bryan W. Whitfield Memorial Hospital
v.
Leland Bert Taylor, Jr., and Tombigbee Healthcare Authority d/b/a Bryan W. Whitfield Memorial Hospital

         Marengo Circuit Court, CV-15-900137

          PETITION FOR WRIT OF MANDAMUS

          SELLERS, JUSTICE.

         Tombigbee Healthcare Authority d/b/a Bryan W. Whitfield Memorial Hospital ("the hospital") petitions this Court for a writ of mandamus directing the Marengo Circuit Court to vacate its order compelling the hospital to respond to certain discovery requests and to enter a protective discovery order in its favor. We deny the petition.

         Facts and Procedural History

         T.N., A.V., O.J., and I.P. (hereinafter referred to collectively as "the plaintiffs") brought this action against the hospital, and its radiological technician, Leland Bert Taylor, Jr., who they allege sexually assaulted them while they were patients of the hospital. The plaintiffs asserted a claim against Taylor, alleging that he had acted negligently and/or wantonly by sexually assaulting them.[1] The plaintiffs also asserted a claim against the hospital, alleging that it was vicariously liable for the negligent and/or wanton acts of Taylor and that it was negligent and/or wanton in its hiring, training, supervision, and retention of Taylor.

         Along with their complaint, the plaintiffs served the hospital with written discovery requests seeking, among other things, information concerning "other incidents" involving Taylor; its investigation into their allegations of sexual assault by Taylor; and its hiring, training, supervision, and retention of Taylor and the termination of his employment. The hospital objected to the plaintiffs' requests, contending that the requests were protected by certain discovery privileges. Specifically, the hospital argued that any information concerning "other incidents" by Taylor was barred by § 6-5-551, Ala. Code 1975, a part of the Alabama Medical Liability Act, § 6-5-480 et seq., Ala. Code 1975, and § 6-5-540 et seq., Ala. Code 1975 ("the AMLA"). Section 6-5-551 of the AMLA prohibits a party from conducting discovery "with regard to any other act or omission." The hospital further argued that any information concerning its hiring, training, supervising, retention, and dismissal of Taylor, as well as its investigation into the plaintiffs' allegations of sexual assault by Taylor, was privileged under § 22-21-8(b), Ala. Code 1975, which provides that "[a]ll accreditation, quality assurance credentialing and similar materials shall be held in confidence and shall not be subject to discovery."

         The plaintiffs filed a motion to compel discovery, relying on Ex parte Vanderwall, 201 So.3d 525 (2015), which held that the AMLA did not apply to allegations of sexual assault. After conducting a hearing, the trial court entered an order granting the plaintiffs' motion to compel. The hospital moved for a protective order pursuant to Rule 26(c), Ala. R. Civ. P., concerning the discovery requests, which the trial court denied. This petition followed.

         Standard of Review

"'Mandamus is an extraordinary remedy and will be granted only when there is "(1) a clear legal right in the petitioner to the order sought, (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so, (3) the lack of another adequate remedy, and (4) properly invoked jurisdiction of the court." Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala. 1991). In Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810 (Ala. 2003), this Court announced that it would no longer review discovery orders pursuant to extraordinary writs. However, we did identify four circumstances in which a discovery order may be reviewed by a petition for a writ of mandamus. Such circumstances arise (a) when a privilege is disregarded, see Ex parte Miltope Corp., 823 So.2d 640, 644-45 (Ala. 2001) .... The burden rests on the petitioner to demonstrate that its petition presents such an exceptional case--that is, one in which an appeal is not an adequate remedy. See Ex parte Consolidated Publ'g Co., 601 So.2d 423, 426 (Ala. 1992).'
"Ex parte Dillard Dep't Stores, Inc., 879 So.2d 1134, 1136-37 (Ala. 2003)."

Ex parte Fairfield Nursing & Rehab. Ctr., L.L.C., 22 So.3d 445, 447 (Ala. 2009).

         Discussion

         The hospital first contends that the trial court exceeded its discretion by allowing the plaintiffs to seek discovery of "other incidents" involving Taylor, which, they say, is prohibited by § 6-5-551 of the AMLA. See Ex parte Gentiva Health Servs., Inc., 8 So.3d 943, 946-47 (Ala. 2008)("The exemption from discovery offered by § 6-5-551 ..., which prohibits a party in a medical-malpractice action 'from conducting discovery with regard to any other act or omission, ' i.e., any act or omission other than the one that allegedly renders the health-care provider liable, is treated as a privilege for purposes of determining whether in issuing the discovery order the trial court has disregarded a privilege, thus warranting review of the discovery order by way of a petition for a writ of mandamus."). The plaintiffs, on the other hand, relying on Ex parte Vanderwall, assert that, because an act of sexual assault by a medical provider does not result in a "medical injury" as contemplated by the AMLA, the hospital cannot rely on § 6-5-551 as a basis on which to refuse to respond to their discovery requests. Whether the plaintiffs' requested discovery is prohibited under § 6-5-551 requires a determination of whether their claim of negligent and/or wanton hiring, training, supervision, and retention is governed by the AMLA and, more specifically, whether this Court's holding in Vanderwall is instructive in this regard.

         In Vanderwall, a physical therapist allegedly sexually assaulted a patient during the course of treating her for back pain. The patient sued the physical therapist, asserting a claim against him for assault and battery. The patient also sued the rehabilitation center that employed the physical therapist, asserting a claim against it of negligent and/or wanton hiring. During the course of discovery, the patient sought a declaration that her claims against the physical therapist and the rehabilitation center were not governed by the AMLA. The patient, however, dismissed her claim against the rehabilitation center, and the case proceeded against only the physical therapist. On appeal, this Court concluded that the physical therapist could not use the AMLA as a basis on which to refuse to answer the patient's interrogatories concerning other acts or omissions on her part because "sexual misconduct by a health-care provider toward a patient is not medical treatment, and it does not result in a 'medical injury' as such an injury is understood under the AMLA." 201 So.3d at 540.

         The hospital contends that Vanderwall is distinguishable, primarily because the patient in Vanderwall dismissed her claim against the rehabilitation center, and Vanderwall thus never addressed whether the AMLA applied to the claim of negligent and/or wanton hiring of the physical therapist. Rather, Vanderwall addressed only whether the claim against the physical therapist, alleging assault and battery based on sexual misconduct, was governed by the AMLA and held that the AMLA did not apply. The hospital asserts that, even though the plaintiffs' negligence and/or wantonness claim against Taylor--based on acts of sexual assault--arguably might not be governed by the AMLA, the claim against it, alleging negligent and/or wanton hiring, training, supervision, and retention, would be governed by the AMLA.[2] In other words, the hospital asserts that the plaintiffs' claim against it is not a claim alleging sexual assault but, rather, an independent claim of medical negligence stemming from the hospital's alleged failure to protect the plaintiffs from harm and its alleged negligent and/or wanton hiring, training, supervision, and retention of Taylor. We agree.

         The AMLA applies "[i]n any action for injury or damages or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care." § 6-5-548, Ala. Code 1975. Section 6-5-551 provides:

"In any action for injury, damages, or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care, whether resulting from acts or omissions in providing health care, or the hiring, training, supervision, retention, or termination of care givers, the Alabama Medical Liability Act shall govern the parameters of discovery and all aspects of the action."

(Emphasis added.) See Ex parte Ridgeview Health Care Ctr., Inc., 786 So.2d 1112, 1116 (Ala. 2000)(stating that "§ 6-5-551 makes it clear that a claim against a health-care provider alleging that it breached the standard of care in hiring, training, supervising, retaining, or terminating its employees is governed by the [AMLA]"). Here, the plaintiffs have specifically alleged that the hospital owed a duty to properly hire, train, supervise, and retain its employees, including Taylor; that the hospital undertook a duty to protect patients like the plaintiffs from harm while they were receiving treatment at its facility; that the hospital negligently and/or wantonly entrusted Taylor with the care and treatment of patients at its facility; that the hospital knew, or in the exercise of reasonable care, should have known that Taylor was incompetent and/or unfit to perform the job he was hired to perform; and that the hospital negligently and/or wantonly failed to act and to terminate Taylor's employment upon actual or constructive notice of his incompetence and/or unfitness to perform his job. The plaintiffs' primary contention is that the hospital was made aware of Taylor's sexual misconduct well before October 7, 2015--the date Taylor was arrested and charged with first-degree sodomy and first-degree sexual assault in connection with the incidents of sexual misconduct that are the subject of the underlying action--yet the hospital did not terminate his employment until after this date. The plaintiffs' allegations clearly implicate the hospital's professional judgment in hiring, training, supervising, and retaining Taylor. Accordingly, we conclude that the plaintiffs' claim against the hospital alleging that it was negligent and/or wanton in its hiring, training, supervising, and retaining of Taylor involves a breach of an applicable standard of care for health-care providers and is, therefore, governed by the AMLA.

         In Ex parte Altapointe Health System, Inc., [Ms. 1160544, September 8, 2017] ___So. 3d___ (Ala. 2017), a case in which a resident of a group home was attacked by another resident, the resident's father, the plaintiff, sued Altapointe, the operator of the group home, alleging that it was negligent and/or wanton in hiring, training, and supervising its employees; the gravamen of the complaint was that Altapointe negligently and/or wantonly failed to safeguard the resident from the attack in the group home. This Court held that the AMLA did not apply to the father's claim, alleging negligent and/or wanton supervision, because there were no express allegations of medical negligence. Rather, the father's contentions were based "solely on the fact that the attack occurred in its facility, " a contention that "merely applies the discredited 'time and place' argument to the facts of this case." ___So. 3d at___ . In Altapointe, this Court pointed out that Vanderwall had overruled the "place and time" rule previously applied by this Court in Mock v. Allen, 783 So.2d 828 (Ala. 2000), and O'Rear v. B.H., 69 So.3d 106 (Ala. 2011). In Vanderwall, this Court explained:

"[I]t is clear that the AMLA is not just concerned with who committed the alleged wrongful conduct or when and where that conduct occurred, but also with whether the harm occurred because of the provision of medical services."

201 So.3d at 537-38. The plaintiffs' primary contention here is that the hospital was on notice of the alleged sexual assaults before Taylor was arrested and charged in connection with the assaults and subsequently released from his employment.

         Because we conclude that the AMLA governs the parameters of discovery in this action, we now address whether § 6-5-551 prohibits the plaintiffs from seeking information concerning "other incidents" or complaints involving Taylor, i.e., any act or omission other than the ones that allegedly render the hospital liable. The hospital asserts that two of the plaintiffs have requested discovery regarding "other incidents" or complaints and regarding the hospital's investigation of those incidents or complaints. The hospital asserts that, because the plaintiffs have filed their cases jointly, any responses of the hospital to the discovery requests will necessarily discuss facts or issues pertaining to the claims of the other plaintiffs. In other words, the hospital argues that § 6-5-551 prohibits each plaintiff from discovering information pertaining to any of the other plaintiffs. The hospital, however, has not cited any authority for its argument that the AMLA's "other acts or omissions" language would preclude plaintiffs who have filed a joint complaint from engaging in discovery related to the same employee by whom they were all victimized. In Ex parte Ridgeview, this Court stated:

"Section 6-5-551, as amended, makes it clear that in an action against a health-care provider, based on acts or omissions in the 'hiring, training, supervision, retention, or termination of [the health-care provider's employees], ' the plaintiff is entitled only to discovery concerning those acts or omissions 'detailed specifica[lly] and factual[ly] descri[bed]' in the complaint and 'alleged by [the] plaintiff to render the health care provider liable to [the] plaintiff.' Thus, if the plaintiff alleges that the defendant health-care provider breached the standard of care by negligently training, supervising, retaining, or terminating an employee or by negligently entrusting an employee with an instrumentality, then the plaintiff may discover information only concerning those acts or omissions by those employees whose conduct is detailed specifically and factually described in the complaint as rendering the health-care provider liable. Consequently, Hayes is not entitled to discovery regarding acts or omissions by Ridgeview in the hiring, training, supervising, retaining, or terminating of employees other than those employees whose acts he detailed specifically and factually described in his complaint as rendering Ridgeview liable."

786 So.2d at 1116-117 (emphasis added). In their complaint, the plaintiffs specifically and factually describe the sexual assaults allegedly inflicted upon them by Taylor. Because the plaintiffs have consolidated their claims, it would be impractical, if not impossible, to prevent each plaintiff from discovering information concerning the alleged acts by Taylor against the other plaintiffs. Therefore, contrary to the hospital's assertion, § 6-5-551 does not prohibit each plaintiff from discovering information pertaining to the claims of the other plaintiffs. Accordingly, the hospital has not shown a clear legal right to have the trial court's discovery order vacated.

         The hospital finally contends that the trial court exceeded its discretion by denying the hospital's motion for a protective order pursuant to § 22-21-8(b), which provides that "[a]ll accreditation, quality assurance credentialing and similar materials shall be held in confidence and shall not be subject to discovery." As indicated, the plaintiffs' discovery requests included information concerning the hospital's hiring, training, supervision, retention, and dismissal of Taylor, as well as information concerning its investigation into their allegations of sexual assault by Taylor. It is well settled that "the party asserting the privilege under § 22-21-8 has the burden of proving the existence of the privilege and the prejudicial effect of disclosing the information." Ex parte Fairfield Nursing, 22 So.3d at 448.

         In support of its motion for a protective order, the hospital offered the affidavit of Cindy Parten, Director of Professional Standards for the hospital, who testified that the discovery the plaintiffs seek is not part of the plaintiffs' medical charts or kept in the ordinary course of business but, rather, is created as a result of quality-assurance investigations and that the importance of their confidentiality cannot be understated. Specifically, Parten testified:

"4. I am knowledgeable concerning the claims set forth in the [present suit brought by the plaintiffs]. I am also knowledgeable as to what information [the hospital] had, if any, as to each Plaintiff and any complaints brought to [the hospital's] attention prior to the current suit being filed. ... More specifically, [the hospital] did engage in investigations with respect to [Taylor] with regard to certain claims made by certain patients in 2015 both prior and subsequent to Mr. Taylor's employment with [the hospital] ending on October 7, 2015. As a result of these investigations, quality assurance reports were generated for both internal purposes within [the hospital] pursuant to its quality assurance process, as well as reports prepared at the request of and submitted to [the hospital's] professional liability insurance carrier with reasonable anticipation of litigation given the nature of the allegations asserted against Mr. Taylor.
"5. Quality assurance activities and investigations, regardless of the reason for why they are initiated, are an important and vital process for [the hospital]. They begin prior to an individual beginning employment with [the hospital] in the form of gathering information on that prospective employee to ensure appropriateness and qualifications for the position to be filled. They continue after employment when any issue is raised that could [a]ffect the healthcare being rendered to patients at [the hospital]. The importance of open and honest investigations, including discussions with other employees of [the hospital] regarding such issues, cannot be understated. It is a vital process that exists to promote the quality and betterment of healthcare at [the hospital]. If quality assurance investigations, and the documents and other materials generated during those investigations, ...

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