Ex parte Children's Hosp. of Alabama

• Decision Date: 28 August 1998
• Parties: Ex parte The CHILDREN'S HOSPITAL OF ALABAMA. Ex parte The UNIVERSITY OF ALABAMA HEALTH SERVICES FOUNDATION, P.C., et al. Ex parte Alan F. JACKS, M.D. (Re John Curtis HOWELL et al. v. David Andrew ROWLAND et al.)
• Court: Alabama Supreme Court

721 So.2d 184

Ex parte The CHILDREN'S HOSPITAL OF ALABAMA.

Ex parte The UNIVERSITY OF ALABAMA HEALTH SERVICES FOUNDATION, P.C., et al.

Ex parte Alan F. JACKS, M.D.

(Re John Curtis HOWELL et al. v. David Andrew ROWLAND et al.)

1970089, 1998

Supreme Court of Alabama.

August 28, 1998.

Robert E. Parsons and Dorothy A. Powell of Parsons, Lee & Juliano, P.C., Birmingham, for petitioner The Children's Hospital of Alabama.

Robert D. Norman and Thomas A. Kendrick of Norman, Fitzpatrick, Wood & Kendrick, Birmingham, for petitioners The University of Alabama Health Services Foundation, P.C., Dr. Patricia A. Aronin, and Dr. Michael Rauzzino.

Crawford S. McGivaren, Jr., and Melanie M. Bass of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for petitioner Alan F. Jacks, M.D.

D. Leon Ashford and Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham; and William H. Atkinson of Fite, Davis, Atkinson, Guyton & Bentley, P.C., Hamilton, for respondents John Curtis Howell, John W. Howell, and Teresa Howell.

SEE, Justice.

The Children's Hospital of Alabama; The University of Alabama Health Services Foundation, P.C.; Dr. Patricia Aronin; Dr. Michael Rauzzino; and Dr. Alan F. Jacks (collectively, the "Health Care Defendants") petition this Court for writs of mandamus directing the Circuit Court of Walker County to grant their motions to transfer the medical malpractice claims filed against them to the Circuit Court of Jefferson County, which would require the severance of those claims from the non-medical malpractice claims remaining in the Circuit Court of Walker County. The Health Care Defendants maintain that under Ala.Code 1975, § 6-5-546, Jefferson County is the only appropriate venue for the malpractice claims because all of the alleged acts of malpractice occurred in Jefferson County. We grant the petitions.

I.

In October 1992, Curt Howell, a minor, was severely injured when he was struck by an automobile while riding his bicycle near his home in Walker County. Howell was initially treated at Walker Regional Medical Center. He was then transferred to Children's Hospital in Jefferson County. The Health Care Defendants treated Howell in Jefferson County.

In 1992, Howell, acting through his parents, filed his initial complaint against the owner of the automobile and against several other defendants who were not health care providers. In May 1993, Howell filed his first amendment to the complaint, adding several medical malpractice claims and adding several health care providers as defendants. This first amendment to the complaint, among other things, listed fictitious defendants who he alleged had negligently failed to "provide a detailed, complete and reliable history of the ... treatment which had been rendered at Walker Regional Medical Center." In June 1993, Children's Hospital moved to transfer the claims to Jefferson County. The trial court denied the motion.

The parties conducted extended discovery spanning approximately four years. As discovery progressed, Howell filed additional amendments to his original complaint, adding new claims and new named and fictitious defendants. Each amendment continued to assert the claims made in the prior amendments, including the claims involving Walker Regional Medical Center. However, Howell listed only fictitious health care providers as defendants responsible for the alleged negligence at Walker Regional Medical Center.

On May 22, 1997, Howell filed his fifth and final amendment to the complaint. The amendment reiterated the claims made in the prior amendments, again listing only fictitious health care providers as defendants responsible for the alleged negligence at Walker Regional Medical Center. On September 9, the trial court accepted the final amendment. On September 16, Children's Hospital moved, pursuant to Ala.Code 1975, § 6-5-546, to transfer the claims to Jefferson County. The other Health Care Defendants made similar motions.

On October 1, 1997, the trial court held a hearing regarding the motions to transfer. At the hearing, Howell's attorney stated that Howell would name no Walker County health care providers as defendants. On October 8, the trial court issued an order denying as untimely the Health Care Defendants' motions to transfer. The Health Care Defendants petition this Court to direct the Walker Circuit Court to transfer the medical malpractice claims to Jefferson County.

II.

A petition for the writ of mandamus is the proper procedure for challenging a trial court's refusal to transfer an action based on improper venue. Ex parte Alabama Power Co., 640 So.2d 921, 922 (Ala. 1994). A writ of mandamus is appropriate when the petitioner makes a clear showing of error on the part of the trial court. Id. The Health Care Defendants argue that venue is proper in Jefferson County as to the medical liability claims against them and that they made a timely objection, under § 6-5-546, to venue in Walker County. Howell argues that although venue may have been proper in Jefferson County under the special venue provision of § 6-5-546, the Health Care Defendants did not timely object to venue in Walker County.

A. General Rules of Venue

Before 1987, medical liability actions were governed by the general rules of venue found in the Code of Alabama 1975. See, e.g., Ala.Code 1975, § 6-3-2(a)(3) (providing for venue in the county where an individual defendant resides); § 6-3-6 (providing for venue in a county where a defendant unincorporated organization or association does business or has a branch or local organization); § 6-3-7 (providing for venue in the county where the personal injury occurred or where the domestic corporation defendant does business); Ex parte Terrell, 503 So.2d 847, 848 (Ala.1987) (stating that venue for a medical malpractice action against a corporate defendant was properly determined under § 6-3-7). Where, because of the joinder of several claims or parties, statutes make venue proper in more than one county, Rule 82(c), Ala. R. Civ. P., provides that venue will be proper "in any county in which any one of the claims could properly have been brought."¹

With respect to the timing of challenges to venue in medical liability actions prior to 1987, Ala.Code 1975, § 6-3-21 provided the general rule that "[a] defendant in a civil action may move for a transfer of venue as provided in the Alabama Rules of Civil Procedure." Rule 12(h)(1) provides the general timing rule applicable to a defendant's challenge of venue by a motion or responsive pleading.² Rule 82(d)(2)(C)(i) provides the general timing rule for multiple-party actions, requiring a defendant to challenge venue within 30 days of the dismissal of the party that had made venue proper in the forum.³ If the defendant did not strictly adhere to the timing requirements, his challenge to venue was waived. Rules 12(h)(1), 82(d)(2)(C)(iii), Ala. R. Civ. P.

Thus, in drafting a new statute with respect to a particular cause of action, the Legislature can either default to the general venue statutes, by not mentioning venue, or it can make special statutory provisions for venue for that particular cause of action. Similarly, with respect to challenges to venue, the Legislature can leave the timing of such challenges to the general provisions of the rules, by not mentioning a timing requirement for challenging venue; this is what it did in §§ 6-3-2, 6-3-6, and 6-3-7.⁴ Alternatively, it could make special provisions for the timing of challenges to venue, by specifically addressing such timing in the statute, as it did in § 6-3-20.⁵

B. Venue Rules under the Medical Liability Act of 1987

In 1987, the Legislature enacted the Alabama Medical Liability Act of 1987 (the "1987 Act"). Acts 1987, No. 87-189, p. 261 (codified at Ala.Code 1975, §§ 6-5-540 to 552). The 1987 Act was designed to control "the spiraling costs ... of essential medical services caused by the threat of [medical liability] litigation." Ala.Code 1975, § 6-5-540. Evidently unsatisfied with the application of the general venue statutes to medical liability actions, the Legislature chose not to default to §§ 6-3-2, 6-3-6, and 6-3-7 by remaining silent. Instead, it expressly provided a special medical liability venue statute in the 1987 Act. See City of Birmingham v. Hendrix, 257 Ala. 300, 307, 58 So.2d 626, 633 (1952) (stating that in attempting to discern the legislative intent of a statute, it is permissible to look to the law as it existed before the statute was enacted). Section 6-5-546 provides in pertinent part:

"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. If plaintiff alleges that plaintiff's injuries or plaintiff's decedent's death resulted from acts or omissions which took place in more than one county within the State of Alabama, the action must be brought in the county wherein the plaintiff resided at the time of the act or omission, if the action is one for personal injuries, or wherein the plaintiff's decedent resided at the time of the act or omission if the action is one for wrongful death.... For the convenience of parties and witnesses, in the interest of justice, a court may transfer any action to any other county where it might have been brought hereunder and/or may order a separate trial as to any claim or party."

(Emphasis added.) Under § 6-5-546, if the acts or omissions giving rise to medical liability occurred in one county, an action based on those acts or omissions "must" be brought in that county. If the acts or omissions giving rise to medical liability occurred in more than one county, however, then an action based on those acts or omissions "must" be brought in the county where the plaintiff resided at the time of the...