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Ex parte Mobile Infirmary Association

Supreme Court of Alabama

May 25, 2018

Ex parte Mobile Infirmary Association d/b/a Mobile Infirmary Medical Center
v.
Mobile Infirmary Association d/b/a Mobile Infirmary Medical Center) (In re: Connie McLain Snow, as Administrator of the Estate of Rhonda Lynn Snow, deceased Ex parte Mobile Infirmary Association d/b/a Mobile Infirmary Medical Center (In re: Connie McLain Snow, as Administrator of the Estate of Rhonda Lynn Snow, deceased
v.
Mobile Infirmary Association d/b/a Mobile Infirmary Medical

          Mobile Circuit Court, CV-15-902232

          PETITION FOR WRIT OF MANDAMUS

          SHAW, Justice.

         In these petitions, which we have consolidated, Mobile Infirmary Association d/b/a Mobile Infirmary Medical Center ("MIMC"), the defendant below, seeks a writ of mandamus directing the Mobile Circuit Court to vacate portions of its May 5, 2017, discovery orders. More specifically, in case no. 1160731, MIMC seeks mandamus review of the portion of the trial court's order compelling MIMC to produce certain documents previously submitted to the trial court for in camera review on the ground that the documents are protected from discovery under § 6-5-551 and/or § 22-21-8, Ala. Code 1975. In case no. 1160815, MIMC seeks mandamus review of another May 5, 2017, order denying MIMC's motions seeking reconsideration of, or, alternatively, a protective order respecting, the trial court's November 10, 2016, order compelling MIMC's response to various discovery requests. In each case, we grant MIMC's petition and issue the writ.

         Facts and Procedural History

         MIMC operates a general medical/surgical facility in Mobile ("the medical center"). On September 4, 2015, the plaintiff/respondent, Connie McLain Snow ("Connie"), filed, in his capacity as administrator of the estate of Rhonda Lynn Snow ("Rhonda"), deceased, [1] a complaint in the Mobile Circuit Court against MIMC and numerous fictitiously named defendants. Connie's complaint alleged a single count of negligence[2]pursuant to Alabama's Medical Liability Act ("the AMLA")[3] in connection with Rhonda's treatment at the medical center on December 10-11, 2013, for surgery on her right foot. According to the complaint, Rhonda was, on December 10, 2013, transferred following surgery to an inpatient room "for pain control and further management of antibiotics." At around 5:50 a.m. on December 11, 2013, Lateedra Barnes, R.N., an employee of MIMC, allegedly administered a dose of Dilaudid to Rhonda; thereafter, at 6:40 a.m. Rhonda was found "non-responsive" in her room and the staff at the medical center were unable to resuscitate her. Rhonda remained on life support until her death on January 3, 2014. In his complaint, Connie alleged that MIMC was negligent in developing effective policies and procedures regarding, and in training its personnel on, the proper "care, monitoring, diagnostics and/or treatment of Rhonda" and that it had breached the accepted standard of care in its treatment of Rhonda. More specifically, Connie alleged that MIMC's employees had "failed to appropriately monitor the respiratory depressive effect" of Dilaudid on Rhonda following administration of the drug.

         Connie's complaint was accompanied by a combined set of "First Interrogatories and Requests for Production" of documents directed to MIMC. Among the documents Connie sought from MIMC were documents related to certain MIMC policies and procedures both at the time of Rhonda's treatment and "currently." Other requests sought "all" procedural rules governing the administration of opiate medication to certain patients, including those suffering from sleep apnea, obesity, or obstructed airways and/or for the "ongoing clinical monitoring" of such patients, pain-management assessment of such patients, and "medication errors." In response, MIMC provided responsive documentation to some requests and objected to others on the basis that they were "not discoverable" on various grounds, including that they were privileged under either § 6-5-551[4] and/or § 22-21-8.[5]

         Connie subsequently moved to compel "full and complete responses" to his first discovery requests and further requested that the trial court require MIMC to "substantiate" the claimed privileges with a privilege log conforming to the requirements of Rule 26(b)(6)(A), Ala. R. Civ. P. MIMC filed in March 2016 a response in opposition to Connie's motion to compel and an accompanying request for a protective order as to the personnel files of certain individuals. MIMC's response was accompanied by affidavit testimony from its risk manager, Linda A. Gamper, aimed at establishing that communications and documents prepared in response to Connie's potential claim both were attorney work product prepared in anticipation of litigation and "were created for quality assurance purposes to assess the quality of care of all patients at [the medical center], " rather than in the ordinary course of MIMC's business. MIMC later filed, at the apparent request of the trial court, a supplemental brief discussing caselaw interpreting and applying both § 6-5-551 and § 22-21-8.

         Following a hearing, the trial court entered, on April 29, 2016, an order compelling MIMC to respond to Connie's first discovery requests. In that order, the trial court emphasized "the distinction between discoverability and admissibility" and noted that, although admissibility of the responses would be considered at a later date, it found as follows on the issue of "discoverability":[6]

"6. MIMC shall ... produce indices of all MIMC's hospital policies and procedures and indices of all its nursing policies and procedures which pertain to patient care from 2013 through current date.
"7. With respect to [Connie's] Requests for Production ... having to do with MIMC's hospital policies and procedures, MIMC shall ... produce all such requested policies and procedures as were in existence in 2013 through the current date.
"MIMC shall ... identify with specificity whether it has a policy and procedure responsive to each of [Connie's] Requests for Production. ...
"If MIMC cannot produce or reproduce each such requested policy and procedure, it shall specify the specific reason or reasons why said documents cannot be produced.
"8. With respect to [Connie's] Requests for Production [regarding orientation materials relating to opioids, including those presented to Barnes], MIMC shall ... produce all requested orientation materials in existence from the time ... Barnes was initially employed through current date concerning patient care.
"9. MIMC shall ... produce all documents and things accumulated in its Risk Management Department concerning care and treatment in December 2013 of Rhonda ..., including investigative reports, sentinel event reports, witness statements, photographs, digital or electronic medical data, the ampules of Dilaudid administered, Code Blue resuscitative notes, Hill ROM data concerning each person who entered [Rhonda's] room on December 11, 2013, and any video surveillance of persons entering, present in, or leaving [Rhonda's] [r]oom ... on December 11, 2013."

         The trial court also ordered MIMC to produce a privilege log for all documents withheld from production as privileged under either § 6-5-551 or § 22-21-8. It further directed:

"As for all documents or things withheld, each and every one of them shall be sequentially Bates stamped numbered from MIMC ... so the Court can determine which, if any, of the withheld documents should be produced for the Court's in camera inspection and determination of whether any one or more should be ordered produced in response to [Connie's] discovery requests."

         On May 13, 2016, MIMC filed a "Motion to Reconsider and Motion for Protective Order" in which, among other relief, MIMC asked to be excused from certain enumerated provisions of the trial court's April 29, 2016, order, including, among other objections, "the production of information protected by ... §§ 22-21-8 and 6-5-551."

         Connie subsequently propounded a second set of requests for production to MIMC. Those new requests sought, among other things, certain "surgical postoperative standard orders made available to physicians ... from December 2013 to the present." MIMC objected to producing the requested documents on grounds including the exemptions in § 6-5-551 and § 22-21-8. At or around this same time, Connie also propounded a second set of interrogatories to MIMC that, among other requests, sought information regarding MIMC's accreditation status and a third set of requests for production seeking information pertaining to any documentation evidencing MIMC's response to "The Joint Commission Sentinel Event Alert #49, Safe Use of Opioids in Hospitals." MIMC again objected, citing § 6-5-551, § 22-21-8, and the attorney-client privilege. MIMC did, however, produce certain documentation, including "all policies and procedures in place in December of 2013." Connie subsequently propounded to MIMC a fourth set of requests for production seeking information "from 2012 to the present" on any and all communications or correspondence between MIMC and either its employees or other health-care providers regarding the dispensation of "narcotics, opioids, Dilaudid and/or Hydromorphone" to patients generally, and to certain high-risk patients specifically, and regarding the monitoring of patients following administration of the above-described substances.

         On August 12, 2016, the trial court entered an order requiring MIMC to produce the documents sought by the second set of requests for production, including reports tracking Barnes's activities and locations on December 10-11, 2013; any and all "surgical postoperative standard orders made available to physicians at [the medical center] for management of postoperative pain from December 2013 to the present"; orthopaedic postsurgical standing orders for Dilaudid; "all surgical postoperative standard orders made available to physicians while treating patients at [the medical center] which provide for the use of continuous pulse oximetry and/or capnography for monitoring postoperative patients who have been prescribed opioid medications" from December 2013 to present; and the precise standardized order used for postoperative monitoring. However, as before, the trial court permitted MIMC to provide for the court's in camera review any documents it objected to producing and a privilege log establishing the basis of each such objection. On August 30, 2016, MIMC sought both "reconsideration" and clarification of the trial court's August 12 production order as well as the entry of a protective order declaring orders pertaining to any patient other than Rhonda and any time frame other than December 10-11, 2013, exempt from production pursuant to § 6-5-551. MIMC later supplemented that motion; in its supplemental filing, MIMC explained that it had produced the 2013 indices of all MIMC policies and procedures and Barnes's orientation transcript for the period beginning with her initial orientation and concluding on December 11, 2013.[7]

         Thereafter, Connie amended his complaint. Specifically, he added allegations that, in relation to Dilaudid's potentially deadly side effect of respiratory depression and/or arrest, 16 months before December 2013 medical literature aimed at helping hospitals formulate and implement policies for ongoing clinical monitoring of at-risk patients had been distributed but that MIMC had failed to act appropriately in response; the amendment identified numerous ways in which MIMC and the fictitiously named defendants had allegedly "negligently departed from the accepted standard of care applicable to similarly situated healthcare provider which was in effect at the time." (Emphasis added.) The amendment further added a claim alleging spoliation of the entirety of Rhonda's medical records by MIMC. At or around this same time, MIMC filed its answers to Connie's second set of interrogatories in which it objected to producing information pertaining to its accreditation status on the ground that the information was protected from discovery pursuant to both § 6-5-551 and § 22-21-8.

         Later, Connie moved to compel MIMC's responses to both his second interrogatories and third requests for production of documents. He also moved to require MIMC "to fully and completely respond to" his fourth requests for production. MIMC provided its responses to Connie's fourth requests for production of documents. More specifically, MIMC produced responsive materials that had been provided to Barnes, but objected to the requests to the extent they also sought

"information about caregivers who were not involved in [Rhonda's] care and treatment..., information about facilities other than [the medical center], ... information for a period of time that pre-date[d] ... Barnes'[s] employment at [MIMC], and as seeking information for a period of time after the acts and/or omissions made the basis of [Connie's] Complaint, all in violation of the protection from discovery provided by ... § 6-5-551."

         MIMC further objected to the extent the requests allegedly sought information related to accreditation, quality assurance, credentialing, or similar functions in alleged violation of § 22-21-8.

         On November 10, 2016, subsequent to a hearing, the trial court entered an order denying MIMC's motion seeking reconsideration of the trial court's earlier April 29, 2016, order requiring MIMC to respond to Connie's first requests for production of documents; excepting documents allegedly subject to attorney-client privilege, the trial court directed that MIMC "prepare a privilege log, Bates stamp documents [withheld based on § 22-21-8 and § 6-5-551] and produce ... said documents for an in camera review" with an accompanying privilege log. Also on November 10, 2016, the trial court entered a different order denying MIMC's motion for reconsideration and clarification of the trial court's August 12, 2016, order and its request for a protective order. In that order, the trial court directed that MIMC produce the documentation covered by the August 12, 2016, order and sought by Connie's second requests for production, subject to a privilege log identifying any withheld documents for the trial court's in camera review, including any documents MIMC continued to maintain were privileged. In a third order entered on that same date, the trial court further granted Connie's motion to compel responses to his second interrogatories and third requests for production of documents and provided that MIMC file a privilege log regarding all documents MIMC argued were privileged for the trial court's in camera review. Also on November 10, the trial court entered a fourth order regarding Connie's motion to compel responses to his fourth requests for production; in that order, the trial court ordered MIMC to produce the requested documentation but, again, allowed MIMC to provide both a privilege log and documents for the trial court's in camera review.

         MIMC filed a motion seeking additional time to comply with the trial court's November 10, 2016, orders. The trial court granted MIMC's motion, providing an additional 21 days or until December 22, 2016, for MIMC "to comply or otherwise respond."

         On December 22, 2016, MIMC filed notice evidencing that it had, as directed, submitted over 6, 000 pages of documents and 2 accompanying privilege logs to the trial court for an in camera review; according to MIMC, these challenged documents were, because of the parties' resolution of other disputes, responsive only to Connie's first requests for production --namely the documents sought by paragraphs 6-9 of the trial court's April 29, 2016, order, as set out above. See note 6, supra. On that same date, MIMC also filed an explanation specifying the privileges allegedly protecting each document from production and discussing applicable authority.

         MIMC also separately filed motions "to reconsider" and for a protective order with regard to the November 10, 2016, orders respectively requiring it to respond to Connie's second interrogatories, third requests for production, and fourth requests for production. As with MIMC's previous filings, the thrust of its objection was primarily that the information sought was exempt from discovery under § 6-5-551 and/or § 22-21-8. MIMC also again submitted, as support for the above-described motions, affidavit testimony from Gamper attesting that the materials in the risk-management file regarding Rhonda's treatment at MIMC, which had been produced for the trial court's in camera inspection, included documents covered by the nonparty subpoena served on MIMC in the separate insurance litigation, see note 7, supra, as well as certain policies prepared for quality-assurance purposes. Gamper further testified that the release of those documents would be prejudicial both to MIMC and to all the patients treated there. A separate affidavit from Gamper established that other documents produced for the trial court's in camera review in response to Connie's first requests for production had been prepared in anticipation of litigation.

         Connie both opposed MIMC's motions and announced his intention to depose MIMC personnel in order to fully and "substantively" respond to MIMC's claims of privilege. Upon the conclusion of Gamper's deposition, Connie filed a lengthy motion seeking to strike all three of Gamper's affidavits. He contended that Gamper's affidavits had been prepared by counsel and were not based on Gamper's personal knowledge; that her statements as to the import of the pertinent documents were conclusory; and that MIMC's counsel had, during Gamper's deposition, allegedly repeatedly instructed Gamper not to answer questions "about her personal knowledge of the statements offered by MIMC to substantiate its claims of privilege." MIMC opposed Connie's request to strike Gamper's affidavits.

         On May 5, 2017, the trial court entered an order on the various pending discovery motions remaining before it at that time. Specifically, the trial court:

"1. DENIE[D] [MIMC]'s December 22, 2016, Motion to Reconsider and Motion for Protective Order Related to Court's November 10, 2016, Order Compelling [MIMC] to Respond to [Connie's] Second Interrogatories ...;
"2. DENIE[D] [MIMC]'s December 22, 2016, Motion to Reconsider and Motion for Protective Order Related to Court's November 10, 2016, Order Compelling [MIMC] to Respond to [Connie's] Third Requests for Production ...; and
"3. DENIE[D] [MIMC]'s December 22, 2016, Motion to Reconsider and Motion for Protective Order Related to Court's November 10, 2016, Order Compelling [MIMC] to Respond to [Connie's] Fourth Requests for Production ...."

         Also on May 5, 2017, the trial court entered another order identifying by Bates stamp numbers the items among those provided to the trial court for its in camera review that MIMC would also be required to produce.[8] There is nothing in the limited materials before us suggesting that the trial court granted Connie's motion seeking to strike Gamper's affidavits. See note 11, infra.

         MIMC sought additional time to comply with the trial court's production orders as well as additional time to "otherwise respond, " including possibly seeking mandamus relief from this Court. The trial court granted MIMC until May 19, 2017, to act. MIMC filed, on May 19, 2017, its initial mandamus petition in case no. 1160731 seeking relief from the May 5, 2017, order requiring it to produce certain items MIMC had previously provided to the trial court for in camera review; MIMC subsequently filed, on June 12, 2017, its second mandamus petition in case no. 1160815 seeking relief from the trial court's May 5, 2017, order denying MIMC's various motions for reconsideration and for protective orders.[9] This Court consolidated the petitions, ordered answers and briefs, and stayed enforcement of the trial court's orders pending our review.

         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).

"Because discovery involves a considerable amount of discretion on the part of the trial court, the standard this Court will apply on mandamus review is whether there has been a clear showing that the trial court [exceeded] its discretion. Ex parte Clarke, 582 So.2d 1064, 1067 (Ala. 1991); Ex parte McTier, 414 So.2d 460 (Ala. 1982)."

Ex parte Compass Bank, 686 So.2d 1135, 1137 (Ala. 1996).

         Discussion

         I. Case No. 1160731

         In this petition, MIMC challenges the trial court's May 5, 2017, order both requiring production of the documentation previously provided for that court's in camera review and compelling MIMC's response to Connie's first and second requests for production.

         A. Section 6-5-551 Exemption

         MIMC first contends that the trial court exceeded its discretion in compelling production of "policies and procedures, educational/training material and physician orders that are not related to the acts and/or omissions alleged in [Connie's] complaint." More specifically, MIMC maintains that the trial court erroneously ordered MIMC to produce, in response to Connie's first and second requests for production, as described in more detail above, policies, procedures, training materials, and physician standing orders implemented by MIMC after December 10 and 11, 2013, because, it argues, those items are exempt from discovery under § 6-5-551. We agree.

         Section 6-5-551 states:

"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 [AMLA] 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. The plaintiff shall amend his complaint timely upon ascertainment of new or different acts or omissions upon which his claim is based; provided, however, that any such amendment must be made at least 90 days before trial. Any complaint which fails to include such detailed specification and factual description of each act and omission shall be subject to dismissal for failure to state a claim upon which relief may be granted. 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 omission."

(Emphasis added.) In Ex parte Anderson, 789 So.2d 190, 195 (Ala. 2000), the Court explained:

"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. See § 6-5-551. Such exemptions would include information regarding any other incidents regarding [the health-care provider and its] alleged breach of the standard of care."

         Here, as in Ex parte Anderson, it appears undisputed that Connie's complaint falls within the purview of § 6-5-551. See Ex parte Coosa Valley Health Care, Inc., 789 So.2d 208, 217 (Ala. 2000) ("This Court's decision in Ex parte McCollough[, 747 So.2d 887 (Ala. 1999), ] recognized that an action against a health-care provider alleging negligent hiring, training, and supervision is an 'action ... for breach of the standard of care' and is thus governed by § 6-5-551 ...."). As such, as the Court also held in Ex parte Anderson, ยง 6-5-551 precludes "[d]iscovery of any incidents of malpractice other than those specifically alleged in the complaint." 789 So.2d at 198. As set out ...


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