Ex Parte Fairfield Nursing and Rehab. Ctr.

• Decision Date: 27 March 2009
• Docket Number: 1080158,1080160.
• Parties: Ex parte FAIRFIELD NURSING AND REHABILITATION CENTER, L.L.C. (In re Leisa Roby, individually and as the personal representative of the estate of Brenda Joyce Roby, deceased v. Fairfield Nursing and Rehabilitation Center, L.L.C., et al.) Ex parte Fairfield Nursing and Rehabilitation Center, L.L.C. (In re Myrtis Hill and Fred Hill v. Fairfield Nursing and Rehabilitation Center, L.L.C., et al.)
• Court: Alabama Supreme Court

22 So.3d 445

Ex parte FAIRFIELD NURSING AND REHABILITATION CENTER, L.L.C. (In re Leisa Roby, individually and as the personal representative of the estate of Brenda Joyce Roby, deceased v. Fairfield Nursing and Rehabilitation Center, L.L.C., et al.) Ex parte Fairfield Nursing and Rehabilitation Center, L.L.C (In re Myrtis Hill and Fred Hill v. Fairfield Nursing and Rehabilitation Center, L.L.C., et al.)

1080158

1080160.

Supreme Court of Alabama.

March 27, 2009.

Thomas M. Rockwell and Tom B. Walsh of Rockwell & Kaufman, L.L.C., Mobile, for petitioner.

Barry Walker of The Walker Law Firm, Birmingham, for respondents.

SMITH, Justice.

These two petitions for the writ of mandamus, which have been consolidated for purposes of issuing one opinion, involve separate actions against Fairfield Nursing and Rehabilitation Center, L.L.C. ("Fairfield"), in the Jefferson Circuit Court. The trial court entered an order in both actions requiring Fairfield to produce certain documents that Fairfield asserts are privileged under § 22-21-8, Ala.Code 1975, and therefore not subject to discovery. We grant the petitions and issue the writs.

Facts and Procedural History

Fairfield is a long-term-care facility. In case no. 1080158, Leisa Roby, individually and as the personal representative of the estate of Brenda Joyce Roby, deceased, alleged medical-malpractice claims against Fairfield relating to Brenda's death while she was a patient at Fairfield. In case no. 1080160, Myrtis Hill and Fred Hill sued Fairfield asserting medical-malpractice claims based on injuries Myrtis allegedly suffered as a result of Fairfield's actions. Leisa Roby and the Hills are hereinafter collectively referred to as "the plaintiffs" or "the respondents."

In the underlying cases, the plaintiffs filed requests for the production of documents. In the Roby action, Leisa requested "any and all incident reports and/or complaints involving Brenda Roby." The Hills filed a similar request in their action, seeking "incident reports regarding Myrtis Hill from June 1992 to Present." Fairfield filed an objection to both requests based on several grounds, including the contention that the requests sought information privileged under § 22-21-8, Ala.Code 1975.

The plaintiffs in each case moved the trial court to compel the production of the requested documents. The trial court granted the motions to compel. Fairfield filed a motion to "reconsider" in each case, citing § 22-21-8.¹ Accompanying each motion were affidavits asserting that Fairfield does not keep in the ordinary course of business incident reports and witness statements concerning residents and that any such documents do not become part of a resident's medical chart. Additionally, the affidavits asserted that incident reports and witness statements are created for quality-assurance purposes.

Following oral arguments on Fairfield's motions to reconsider, the trial court, in each case, ordered Fairfield to produce the requested documents. Fairfield then petitioned this Court for a writ of mandamus in each case.

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).

Discussion

The issue presented by these petitions is whether Fairfield sufficiently demonstrated that it is entitled to the privilege in § 22-21-8, Ala.Code 1975, with respect to the requested documents. Section 22-21-8 provides:

"(a) Accreditation, quality assurance and similar materials as used in this section shall include written reports, records, correspondence, and materials concerning the accreditation or quality assurance or similar function of any hospital, clinic, or medical staff. The confidentiality established by this section shall apply to materials prepared by an employee, advisor, or consultant of a hospital, clinic, or medical staff and to materials prepared by an employee, advisor or consultant of an accrediting, quality assurance or similar agency or similar body and to any individual who is an employee, advisor or consultant of a hospital, clinic, medical staff or accrediting, quality assurance or similar agency or body.

"(b) All accreditation, quality assurance credentialling and similar materials shall be held in confidence and shall not be subject to discovery or introduction in evidence in any civil action against a health care professional or institution arising out of matters which are the subject of evaluation and review for accreditation, quality assurance and similar functions, purposes, or activities. No person involved in preparation, evaluation or review of accreditation, quality assurance or similar materials shall be permitted or required to testify in any civil action as to any evidence or other matters produced or presented during the course of preparation, evaluation, or review of such materials or as to any finding, recommendation, evaluation, opinion, or other action of such accreditation, quality assurance or similar function or other person involved therein. Information, documents, or records otherwise available from original sources are not to be construed as being unavailable for discovery or for use in any civil action merely because they were presented or used in preparation of accreditation, quality assurance or similar materials nor should any person involved in preparation, evaluation, or review of such materials be prevented from testifying as to matters within his knowledge, but the witness testifying should not be asked about any opinions or data given by him in preparation, evaluation, or review of accreditation, quality assurance or similar materials."

In support of its assertion of the privilege in both of the underlying cases, Fairfield offered the affidavits of Donna Guthrie, the executive director of its facility, and Janie Dawson, the former director of nursing at the facility. Both Guthrie's and Dawson's affidavits identically stated as follows:

"Incident reports and witness statements concerning residents are not kept in the ordinary course of business, nor do they become a part of the resident medical chart. ... Incident reports and witness statements are created for quality assurance purposes. The creation of the reports and the gathering of statements are needed to guarantee the high quality of care for all residents. ... The confidentiality of the incident reports and witness statements is needed to keep investigations of incidents at the facility candid and open. Production of incident reports and witness statements to those outside the facility would be detrimental to the quality of care provided for all residents."

In Ex parte Coosa Valley Health Care, Inc., 789 So.2d 208 (Ala.2000), this Court reaffirmed the principle 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. 789 So.2d at 219-20 (citing Ex parte St. Vincent's Hosp., 652 So.2d 225, 230 (Ala. 1994)). Fairfield contends that the affidavits it submitted with its motions to reconsider sufficiently demonstrated that the requested documents were privileged "quality assurance" materials under § 22-21-8 and that disclosing the information would be prejudicial to Fairfield. Fairfield primarily relies on two cases in support of its position: Ex parte Qureshi, 768 So.2d 374 (Ala.2000), and Kingsley v. Sachitano, 783 So.2d 824 (Ala.2000).

In Ex parte Qureshi, the plaintiff, Larrimore, sought information and documents from Vaughan Regional Medical Center, Inc., pertaining to Dr. F.H. Qureshi, one of its staff physicians. Specifically,

"Larrimore issued a notice of deposition to Vaughan Regional. The notice sought, pursuant to Rule 30(b)(6), Ala. R. Civ. P., to have a representative of Vaughan Regional testify regarding several subjects, including Dr. Qureshi's qualifications, training, education, and board certification in the field of orthopedic surgery. The notice further sought any investigations or evaluations of Dr. Qureshi and his qualifications, training, education, and board certification in the field of orthopedic surgery conducted or received by Vaughan Regional before Dr. Qureshi was granted staff privileges. In addition, pursuant to Rule 30(b)(5), Ala. R. Civ. P., the notice asked that Vaughan Regional produce certain documents at this deposition, including the following:

"`3. All documents which evidence, or relate or pertain in any way to, the business or contractual relationship between Vaughan Regional Medical Center, Inc., and Dr. F.H. Qureshi, including, without limitation, the following:

"`....

"`h. documents evidencing, or pertaining in any way to, any investigations or evaluations of Dr. Qureshi and his qualifications, training, education and board certification in the field of orthopaedic surgery conducted or received by [Vaughan Regional] before it entered into a contractual relationship with Dr. Qureshi;

"`i. documents evidencing, or...