Baptist Health System, Inc., d/b/a Walker Baptist MedicalCenter
Armando Cantu, as father and next friend of Daniel Jose Cantu, a minor
from Walker Circuit Court (CV-11-900378)
Health System, Inc., d/b/a Walker Baptist Medical Center
("WBMC"), appeals from the Walker Circuit
Court's denial of its postjudgment motion seeking relief
from the judgment entered on a jury verdict in favor of
Armando Cantu ("Armando"),  as father and next friend of
Daniel Jose Cantu ("Daniel"), a minor, on
Armando's medical-malpractice claim. For the reasons
discussed below, we reverse the judgment and remand the case
for a new trial.
and Procedural History
September 19, 2009, Armando and his wife, Eulalia, took then
three-month-old Daniel to WBMC's emergency room for
treatment following symptoms including decreased appetite,
coughing, and a fever that had lingered for several days. At
that time, Daniel was diagnosed by the attending
emergency-room physician as suffering from a viral illness
(specifically, an upper-respiratory infection) and was
discharged with instructions to continue fluids and to seek
further treatment if the symptoms continued. Thereafter,
Daniel's condition allegedly further deteriorated into
vomiting, suspected dehydration, decreased activity, and
"irritab[ility] whenever his neck was touched."
following day, September 20, 2009, Armando and Eulalia
returned with Daniel to WBMC's emergency room. After an
initial evaluation by the attending emergency-room physician,
Daniel was ultimately admitted and was referred to Dr. James
G. Wilbanks, a pediatrician with an office adjacent to, and
admitting privileges at, WBMC, for inpatient treatment.
During Daniel's stay at WBMC, his condition --diagnosed
by Dr. Wilbanks as a viral infection and possible
acetaminophen toxicity -- allegedly improved; Daniel's
fever resolved completely during that time and Daniel ate
consistently, with no vomiting and normal urine output.
Following a satisfactory physical examination and laboratory
testings, Dr. Wilbanks discharged Daniel on September 22,
2009, without any accompanying prescription medication but
with a follow-up appointment set for September 29, 2009.
following his discharge from WBMC, Daniel allegedly slept
little and continued to exhibit both irritability and fever,
Armando and Eulalia took Daniel to see another pediatrician
on September 23, 2009. During that visit, Daniel's
pediatrician performed a "spinal-tap" test that was
presumptively positive for the presence of bacterial
meningitis. Daniel was immediately transported to WBMC's
emergency room and was subsequently transferred to
Children's Hospital in Birmingham, where he was treated
with an antibiotic regimen and released on October 23, 2009,
with the following "discharge diagnosis":
"meningococcal meningitis, hydrocephalus status post
ventriculoperitoneal shunt placement, seizure disorder,
blindness, and deafness as a result of bacterial
October 2011, Armando sued both WBMC and Dr.
Wilbanksin the Walker Circuit Court alleging a
single count pursuant to Alabama's Medical Liability
Following several amendments to his original complaint,
Armando essentially alleged that Dr. Wilbanks had
negligently, wantonly, and/or recklessly breached acceptable
standards of care in providing treatment to Daniel during his
stay at WBMC. More specifically, according to Armando, Dr.
Wilbanks and WBMC failed to "timely and/or properly
diagnose" and to promptly treat Daniel's bacterial
meningitis and, as a result of those alleged failures, Daniel
was left with, among other permanent physical injuries,
visual and hearing impairment and a seizure disorder.
complaint further alleged that, during his treatment of
Daniel, Dr. Wilbanks was acting both as "a servant,
agent, and/or employee of ... WBMC" and "within the
line and scope of said employment and/or agency, so that ...
WBMC [was] vicariously liable for the conduct of [Dr.]
Wilbanks" based on the fact that WBMC allegedly
"maintained a reserved right of control over ... [Dr.]
Wilbanks." This allegation of WBMC's control
specifically referenced "the Governing Board of the
Baptist Health System, the Medical Executive Committee of
[WBMC], and the Medical Staff of [WBMC]."
discovery, the trial court denied WBMC's motion seeking a
summary judgment on Armando's vicarious-liability claims
against it and denied a similar motion by Dr. Wilbanks on
Armando's wantonness claim against him. Thereafter, the
matter proceeded to a jury trial. On the first day of trial,
Armando stipulated to the dismissal without prejudice of his
claims against Dr. Wilbanks.
conclusion of the trial, Armando's claims against WBMC
"based upon vicarious liability or respondeat
superior" were presented for the jury's
consideration. Ultimately, the jury returned a verdict
finding that Dr. Wilbanks's actions did not meet the
applicable standard of care, finding WBMC liable for the
conduct of Dr. Wilbanks, and awarding Armando $10, 000, 000
in damages; the trial court entered judgment accordingly.
WBMC filed a postjudgment motion seeking a judgment as a
matter of law or a new trial. Among the other claims included
in that motion, WBMC specifically asserted that it was
entitled to a new trial based on the trial court's
admission, over WBMC's objections, of evidence of prior
medical-malpractice lawsuits filed against WBMC. Following
the trial court's denial of its postjudgment motion, WBMC
"'"'The standard applicable to a review of
a trial court's rulings on the admission of evidence is
determined by two fundamental principles. The first grants
trial judges wide discretion to exclude or to admit
evidence.'" Mock v. Allen, 783 So.2d 828,
835 (Ala. 2000) (quoting Wal-Mart Stores, Inc. v.
Thompson, 726 So.2d 651, 655 (Ala. 1998)). Despite the
latitude afforded the trial court in its evidentiary rulings,
a trial court exceeds its discretion where it admits
prejudicial evidence that has no probative value. See
Powell v. State, 796 So.2d 404, 419
(Ala.Crim.App.1999), aff'd, 796 So.2d 434 (Ala. 2001).
"'"'The second principle "is that a
judgment cannot be reversed on appeal for an error [in the
improper admission of evidence] unless ... it should appear
that the error complained of has probably injuriously
affected substantial rights of the parties."'"
Mock, 783 So.2d at 835 (quoting Wal-Mart
Stores, 726 So.2d at 655, quoting in turn Atkins v.
Lee, 603 So.2d 937, 941 (Ala. 1992)). See also Ala. R.
App. P. 45. "The burden of establishing that an
erroneous ruling was prejudicial is on the appellant."
Preferred Risk Mut. Ins. Co. v. Ryan, 589 So.2d 165,
167 (Ala. 1991).'
"'Middleton v. Lightfoot, 885 So.2d 111,
113-14 (Ala. 2003) (emphasis omitted)."
Wood v. Hayes, 104 So.3d 863, 870 (Ala. 2012).
raises several challenges on appeal, including whether the
trial court exceeded its discretion in allowing the jury to
hear testimony of prior medical-malpractice actions brought
against WBMC, in violation of § 6-5-551, Ala. Code 1975.
This claim is dispositive.
§ 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. The plaintiff shall include in the complaint filed in
the action a detailed specification and factual description
of each act and omission alleged by plaintiff to render the
health care provider liable to plaintiff and shall include
when feasible and ascertainable the date, time, and place of
the act or acts. ... Any party shall be prohibited from
conducting discovery with regard to any other act or omission
or from introducing at trial evidence of any other act or
(Emphasis added.) See also Ex parte Anderson, 789
So.2d 190, 195 (Ala. 2000) ("If all conditions of the
statute are met, then any other acts or omissions of the
defendant health-care provider are exempt from discovery, and
the discovering party is prohibited from introducing evidence
of them at trial. ... Such exemptions would include
information regarding any other incidents regarding [the
defendant] and [its] alleged breach of the standard of
care."). Stated generally, for purposes of this case,
that Code section prohibits the admission into evidence at
trial of acts or omissions by a health-care provider that are
not related to the acts or omissions giving rise to the
the clear language of the foregoing Code section and the
broad nature of the privilege it provides, we note that this
Court has recognized, in limited circumstances, an exception.
Specifically, as demonstrated by this Court's holding in
Crowne Investments, Inc. v. Reid, 740 So.2d 400
(Ala. 1999), the privilege found in § 6-5-551 can, in
effect, be waived and the opposing party be entitled to
introduce evidence of other acts or omissions if the
defendant healthcare provider "opened the door" to
such information. 740 So.2d at 408. In Crowne, the
defendant health-care provider's counsel asked the
plaintiff's witness, during cross-examination, about both
her personal observations of the services rendered to the
defendant's patients and her impression as to the quality
of that care. On redirect, the plaintiff, without objection
by the defendant, asked "a question regarding other
acts, " namely whether the witness had observed patients
going unfed,  which the witness answered without
objection by the defendant. 740 So.2d at 408. The
defendant's subsequent objection to that line of
questioning was deemed untimely, and the trial court
permitted further questions regarding the defendant's
treatment of other patients. On appeal, we rejected the
defendant's claim that the trial court's admission of
the other-acts testimony violated § 6-5-551. Instead, we
explained that "[a] party who opens the door to an
otherwise objectionable area of testimony cannot claim error
when the opposing party introduces similar
evidence." 740 So.2d at 408 (emphasis added).
exception recognized in Crowne, which allows a party
to counter the introduction of otherwise objectionable or
inadmissible evidence by the introduction of comparable
evidence, appears to be based to some degree on the
doctrine of "curative admissibility":
"'Curative Admissibility is a doctrine which holds
that if a party introduces illegal evidence, his opponent has
the unconditional right to rebut such evidence with other
Kelley v. State, 405 So.2d 728, 730
(Ala.Crim.App.1981) (quoting C. Gamble, McElroy's
Alabama Evidence § 14.01 (3d ed. 1977) (emphasis
added)). However, that rule is limited.
"'The rule is applicable even if the opponent failed
to object to the original illegal or inadmissible evidence.
A limitation upon this doctrine is the rule that the
illegal rebuttal evidence may be admitted only to the extent
that it cures the effect of the admission of the first
illegal evidence. If, for example, a party introduces
evidence of a hearsay conversation then his opponent has the
right to ...