Ex parte McCollough

• Decision Date: 08 January 1999
• Citation: 747 So.2d 887
• Parties: Ex parte Willie B. McCOLLOUGH, as administratrix of the estate of Rochelle S. Loftin, deceased. (Re Willie B. McCollough, as administratrix of the estate of Rochelle S. Loftin, deceased v. Dalraida Health Center, Inc., et al.).
• Court: Alabama Supreme Court

747 So.2d 887

Ex parte Willie B. McCOLLOUGH, as administratrix of the estate of Rochelle S. Loftin, deceased.

(Re Willie B. McCollough, as administratrix of the estate of Rochelle S. Loftin, deceased v. Dalraida Health Center, Inc., et al.).

1962015.

Supreme Court of Alabama.

January 8, 1999.

Tyrone C. Means, H. Lewis Gillis, Mark Englehart, and Deborah Sanders Manasco of Thomas, Means & Gillis, P.C., Montgomery, for petitioner.

Jeffrey W. Smith, Montgomery, for respondent Dalraida Health Center, Inc.

Tom Dutton, Birmingham, for amicus curiae National Citizens' Coalition for Nursing Home Reform, in support of the petitioner.

John L. Quinn of Nakamura & Quinn, Birmingham, for amicus curiae American Ass'n of Retired Persons, in support of the petitioner.

William D. Jones III, Richard J. Brockman, R. Marcus Givhan, and James F. Henry of Johnston, Barton, Proctor & Powell, L.L.P., Birmingham, for amicus curiae Alabama Nursing Home Ass'n.

W. Stancil Starnes and Sybil Vogtle Abbot of Starnes & Atchison, Birmingham, for amicus curiae Medical Ass'n of the State of Alabama.

PER CURIAM.

Willie B. McCollough, as the administratrix of the estate of Rochelle S. Loftin, petitions for a writ of mandamus directed to the Circuit Court of Montgomery County. Ms. McCollough asks this Court to order the circuit court to "compel the requested discovery pursuant to a proper construction of the Alabama Medical Liability Act, Ala.Code 1975, § 6-5-551." Alternatively, Ms. McCollough seeks a declaration that the portions of § 6-5-551 purporting to restrict discovery in medical liability actions are unconstitutional and an order compelling discovery based on that declaration. Section 6-5-551, enacted as part of the Alabama Medical Liability Act of 1987, 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 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. 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. Plaintiff 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. 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 can be granted."

(Emphasis added.)

Ms. McCollough's complaint alleges that the death of Ms. Loftin, her grandmother, was caused by wrongful conduct on the part of the defendants. The complaint names as defendants Dalraida Health Center, Inc. ("Dalraida"), and Nina Ferguson, the administrator of a nursing home operated by Dalraida, and it describes a number of fictitiously named defendants. Count one alleges:

"Prior to December 23, 1995, Plaintiff's Decedent, Rochelle S. Loftin, entered into an express or implied contract with Defendant Dalraida Health Center whereby, for consideration duly paid by her or on her behalf, Dalraida Health Center was to provide her a place of residence and to provide her food and personal care. By the terms of such contract, Defendant Dalraida Health Center expressly or impliedly agreed or warranted to use reasonable care and diligence in providing the personal care of Plaintiffs Decedent, and to exercise reasonable care in maintaining the personal safety and general health and welfare of Plaintiffs Decedent. Pursuant to such contract, Plaintiff's Decedent was entrusted to Dalraida Health Center's sole custody and care.

"On or about December 23, 1995, the named defendants ... breached the terms of the foregoing warranty and/or contract, by willfully, wrongfully, and/or recklessly administering a [gastrostomy tube, or `G-Tube'] feeding of `Jevity' instead of administering Plaintiff's Decedent's prescribed G-Tube feeding of `Glucerna,' a specialized nutrition with fiber for patients with abnormal glucose tolerance, which had been ordered for her diabetic condition.

"As a proximate consequence of failing to administer the prescribed G-Tube feeding to Plaintiffs Decedent and such breach of contract or warranty, Plaintiffs Decedent was caused to suffer an adverse reaction resulting in great pain and physical suffering, severe mental anguish and/or emotional distress, and death."

Count two alleges that the defendants were negligent, wanton, or reckless in the following respects:

"a. Defendants failed to use reasonable care in administering the prescribed G-Tube feeding to Plaintiffs Decedent at Dalraida Health Center;

". . . .

"c. Defendants failed to monitor and chart the physical condition of Plaintiffs Decedent during the administration of the wrong G-Tube feeding, and failed to correctly identify and chart the type of G-Tube feeding administered to Plaintiff's Decedent at Dalraida Health Center;

"d. Defendants failed to report any and all adverse and/or life-threatening changes in the physical condition of Plaintiffs Decedent, Rochelle S. Loftin, during the administration of the wrong G-Tube feeding to the Director of Nursing and/or the Assistant Director of Nursing, to the Plaintiffs Decedent's personal physician and/or to the Medical Director of Dalraida Health Center; and to Mrs. Loftin's sponsor, Willie B. McCollough, the Plaintiff in this action;

"e. Defendants failed to screen, or improperly screened, and/or were otherwise negligent, wanton or reckless in hiring nursing care personnel at Dalraida Health Center;

"f. Defendants failed to properly and adequately train, supervise, and monitor the performance of, evaluate, and/or discipline their nursing care personnel at Dalraida Health Center;

"g. Defendants assigned personnel to give care to Plaintiff's Decedent who were not competent or who were unfit to provide and/or incapable of providing adequate nursing care at Dalraida Health Center;

"h. Defendants understaffed or otherwise failed to provide sufficient nursing personnel to provide all necessary nursing care to Plaintiff's Decedent at Dalraida Health Center in conjunction with the needs of other residents there.

"The foregoing acts and omissions reflect and proximately result from Defendants' systemic [sic] failure to adopt, promulgate, monitor and/or enforce policies and procedures at Dalraida Health Center to prevent or minimize the risk of such acts and omissions and the reasonably foreseeable harm and risk of harm and/or death proximately caused thereby.

"As a direct and proximate result of such negligent, grossly negligent, wanton, reckless, malicious and/or intentional conduct, Defendants caused Plaintiffs Decedent to suffer severe bodily harm, including great pain and physical suffering and severe mental anguish and/or emotional distress."

(Emphasis added.)

Count three realleges the preceding allegations and seeks damages for the wrongful death of Ms. Loftin. Count four alleges suppression, count five alleges fraud, and count six alleges conspiracy; these three counts relate to the defendants' communications, or lack thereof, with Ms. McCollough about the cause of Ms. Loftin's death. Counts four, five, and six were dismissed, and are not at issue here.

Ms. McCollough filed interrogatories, notices of depositions, and requests for production. Dalraida objected to this discovery, and Ms. McCollough filed a motion to compel production. Ms. McCollough argued that, to the extent § 6-5-551 purports to limit the discovery in a medical liability action, it is unconstitutional, and she served the attorney general with a copy of the motion making this argument. After a hearing, the circuit court denied the constitutional challenge and directed the parties to attempt to resolve their discovery disputes. Dalraida produced some documents, but continued to object that § 6-5-551 precluded discovery of other documents and information.

After a further hearing, the circuit court granted Dalraida's request for a protective order as to the matters that are the subject of the following interrogatories and requests for production:

"Please describe in detail any previous and subsequent incidents from 1990 through the present of which defendant is aware which occurred in substantially the same way or in a similar way as the incident made the basis of this lawsuit.

"Please produce complete and legible copies of all documents pertaining to investigations relating to alleged abuse, mistreatment and/or neglect of resident(s) or to the health, safety, and/or welfare of resident(s) which have been initiated against you and/or which you have conducted for the years 1990 to the present.

"Please produce complete and legible copies of each and every letter, note, [memorandum], or other document and communication received by you relating to complaints about resident care, mistreatment or abuse by nursing personnel for the years 1990 through the present.

"Please produce complete and legible copies of all disciplinary reports, memoranda, notes, letters or other documents and communications relating to physicians and nursing personnel working the day, evening, and night shifts from January 1, 1990 through December 31, 1995.

"Please produce complete and legible copies of any and all employee complaints communicated to you, including all complaints communicated to you by memoranda, letter, note or any other form of document or communication from January 1, 1990 through December 31, 1995.

"Please produce complete and legible copies of all nursing personnel evaluations for the years 1992 through the present.

"Please produce complete and legible copies of personnel records for all nursing personnel employed by you at any

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