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: Lula Battle, as personal representative of the Estate of Willie Trainor-Battle, deceased
Mobile
Circuit Court, CV-15-900351
PETITION FOR WRIT OF MANDAMUS
WISE,
JUSTICE.
Mobile
Infirmary Association d/b/a Mobile Infirmary Medical Center
("Mobile Infirmary") has filed a petition for a
writ of mandamus asking this Court to direct the Mobile
Circuit Court to vacate paragraph 11 of its February 6, 2018,
protective order. We grant the petition and issue the writ.
Facts
and Procedural History
On
February 4, 2015, Lula Battle, as personal representative of
the estate of Willie Trainor-Battle, deceased, filed a
wrongful-death complaint against Mobile Infirmary, Dr. Rabin
L. Shrestha, Jr., and various fictitiously named defendants.
In the complaint, Battle alleged that, on or about August 26,
2013, Trainor-Battle was admitted to Mobile Infirmary Medical
Center ("the hospital") for the treatment of a
sickle-cell crisis with severe pain; that hospital personnel
attempted to manage Trainor-Battle's pain by using IV
administration of Demerol, methadone, and Phenergan; that
Trainor-Battle was found unresponsive and not breathing at
approximately 5:25 a.m. on August 28, 2013; that efforts to
resuscitate Trainor-Battle were unsuccessful; and that
Trainor-Battle was pronounced dead at 5:55 a.m. on August 28,
2013. The complaint alleged that Trainor-Battle died as a
result of medical malpractice.
Battle
served requests for production and interrogatories on Mobile
Infirmary. In its mandamus petition, Mobile Infirmary
alleges:
"The information requested included personnel records
for certain of Mobile Infirmary's employees who were
involved in Mr. Trainor-Battle's care and treatment, as
well as many hundreds, if not thousands, of pages of
information that must be printed out from Mobile
Infirmary's electronic medical records system. These
electronic medical records programs consist of software
designed by various third-party vendors, and these vendors
consider their programs confidential and proprietary. In
addition, Mobile Infirmary has developed some of its own
programs and/or modifications to the systems designed by
third-party vendors, and Mobile Infirmary considers this
information to be confidential and proprietary property as
well.
"In order to provide sufficient protection both to its
employees' personal information as well as the
confidential and proprietary electronic medical records
programs, Mobile Infirmary typically requires a Protective
Order before such information can be produced. Here, the
parties were unable to reach an agreement over the
appropriateness or terms of a Protective Order."
On
February 2, 2018, Mobile Infirmary filed a motion for a
protective order. It submitted a proposed protective order
and asked the trial court to enter that order. Mobile
Infirmary went on to state in its motion for a protective
order:
"3. Mobile Infirmary anticipates that [Battle] will
propose a Protective Order similar (or identical) to the
Amended Protective Order entered on February 21, 2017 by
Judge Michael Youngpeter in the Dotson v. Mobile
Infirmary case. While Mobile Infirmary asserted several
bases for objecting to the entry of this Order in the
Dotson case, Mobile Infirmary's primary
objection was based on the inclusion of Paragraph 11, most
specifically the language in Paragraph 11 that allows
Plaintiff's counsel to affirmatively use documents
produced in the Dotson case pursuant to the
Protective Order in other cases pending against Mobile
Infirmary.
"4. Mobile Infirmary opposes the entry of a Protective
Order in this case that contains any language that
affirmatively allows [Battle's] counsel to use documents
produced in this case in other cases against Mobile Infirmary
(or for any purpose other than prosecuting [Battle's]
claims in this case).
"5. Under Alabama law, Paragraph 11, as contained in the
Amended Protective Order in the Dotson case,
violates the restrictions on discovery provided by the
Alabama Medical Liability Act, specifically Alabama Code
§ 6-5-551. Paragraph 11 also is contrary to the
procedures for discovery outlined in the Alabama Rules of
Civil Procedure."
On
February 5, 2018, Battle filed a proposed protective order
that included the language to which Mobile Infirmary had
previously stated its opposition.
On
February 6, 2018, the trial court entered a protective order
in this case. That order included the following paragraph:
"11. Nothing in this Order shall prevent [Battle's]
counsel from sharing the Confidential Information obtained in
this Lawsuit with other partners, associates and staff of the
same law firm who may be involved in other litigation against
Mobile Infirmary. However, to the extent [Battle's]
counsel and law firm wish to affirmatively use Confidential
Information (to question witnesses, to provide to experts,
defend or support motions, etc.) in other cases against
Mobile Infirmary, [Battle's] counsel and law firm must
seek approval for such use from the judges presiding over the
other ...