Ex parte St. Vincent's Hosp.

• Decision Date: 02 September 1994
• Citation: 652 So.2d 225
• Parties: Ex parte ST. VINCENT'S HOSPITAL. (Re John Michael NEWTON, et al. v. ANESTHESIA SERVICES OF BIRMINGHAM, P.C., et al.). 1930537.
• Court: Alabama Supreme Court

Page 225

652 So.2d 225

Ex parte ST. VINCENT'S HOSPITAL (Re John Michael NEWTON, et al. v. ANESTHESIA SERVICES OF BIRMINGHAM, P.C., et al.).

1930537.

Supreme Court of Alabama.

Sept. 2, 1994.

Rehearing Denied Dec. 9, 1994.

Mark W. Lee, Jr. of Parsons, Lee & Juliano, P.C., Birmingham, for petitioner.

Thomas W. Christian, Deborah Alley Smith and Peggy C. Hooker of Rives & Peterson, M. Clay Alspaugh and Ronald R. Crook of Hogan, Smith, Alspaugh, Samples & Pratt, P.C., Kimberly R. West, Birmingham, for respondents.

John W. Lowe of James, Lowe & Mobley, Haleyville, for amici curiae Alabama Hosp. Ass'n and Alabama Hosp. Ass'n Trust, in support of the petitioner.

Michael S. Burroughs of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for amicus curiae DCH Regional Medical Center, in support of the petitioner.

Gary A. Parker of Norman, Fitzpatrick, Wood, Parker & Kendrick, Birmingham, for amicus curiae Bd. of Trustees of University of Alabama d/b/a The University of Alabama Hospitals and Clinics, in support of the petitioner.

Charles E. Sharp and Stephanie R. White of Sadler, Sullivan, Herring & Sharp, P.C., Birmingham, for amicus curiae Baptist Health System, Inc., in support of the petitioner.

Lyman H. Harris and R. Stan Morris of Harris, Evans, Berg, Morris & Rogers, P.C., Birmingham, for amicus curiae Medical Center East, in support of the petitioner.

Walter W. Bates and Ashley E. Watkins of Starnes & Atchison, Birmingham, for amicus curiae the Medical Ass'n of the State of Alabama, in support of the petitioner.

Robert L. Williams of Spain, Gillon, Grooms, Blan & Nettles, Birmingham, for amicus curiae Alabama Ass'n for Health Care Quality, in support of the petitioner.

SHORES, Justice.

St. Vincent's Hospital petitions this Court for a writ of mandamus directing the trial judge to vacate his discovery order of December 3, 1993. We deny the writ.

The background of this case is as follows: Zeneca, Inc. (formerly Stuart Pharmaceuticals) and St. Vincent's are codefendants in a medical malpractice/products liability action. St. Vincent's filed a cross-claim against Zeneca, alleging that Zeneca had failed to adequately warn the hospital of the dangers associated with the use of the product "Hibiclens," a pre-operative scrub the plaintiff says got into his eyes during surgery and caused a chemical burn to his left cornea, and alleging breach of warranty.

Zeneca sought discovery of a "Dear Doctor" letter sent by Zeneca to St. Vincent's several months before the date of the plaintiff's injury, which warned the hospital that the product should not be used around the face and eyes. During depositions of hospital employees, it was found that the letter, dated October 16, 1987, was received by St. Vincent's and that the letter had been forwarded to the Infection Control Committee. St. Vincent's refused to allow the deponents to respond to questions regarding the action taken by the hospital in response to the letter, claiming that it was privileged pursuant to § 34-24-58 and § 22-21-8, Ala.Code 1975.

Zeneca then sought discovery of the letter and documents evidencing the actions taken by the hospital in response to it. On January 5, 1993, the trial judge ordered that St. Vincent's produce "all requested Infection control actions, minutes, records, file and procedures relating to Hibiclens warnings, use or 'Dear Doctor' letters to the Court within thirty (30) days for an in camera inspection." After an in camera review of the documents the trial court entered the following order dated February 12, 1993:

"This Court has reviewed the Infection Control Committee Report. It is the opinion of this Court that there can be no proper, legal or meaningful adjudication of this case, unless the parties are privy to the report of the Infection Control Committee (i.e., this Court, after reviewing said document, is amenable to a summary adjudication as to less than all parties'[;] however, movant would not have the knowledge requisite to seek summary judgment without the benefit of this report).

"Hence this Court Orders the portion of the report applicable to Hibiclens--not including 'recommendation. action'--to be produced to requesting party, ten days from date."

St. Vincent's responded by producing a one-page document with portions redacted. Zeneca filed a motion to compel. On July 13, 1993, the trial judge ordered St. Vincent's to produce "incident reports or committee reports regarding the use or precautions to use of Hibiclens." Again, on October 28, 1993, the court ordered that the letter and documents relating to the action taken by the hospital pertaining to the use of Hibiclens be produced. On November 3, 1993, St. Vincent's filed a notice of dismissal of its cross-claim and a motion to "reconsider," asserting that the documents were privileged as a part of its quality assurance functions. The court heard oral argument on the motion, and it entered this order dated December 3, 1993:

"ORDER

"Upon receipt and review between November 12, 1993, and this date, of further notice from Thomas W. Christian, codefendant, Stuart Pharmaceutical, this Court enters the following order:

"St. Vincent's Hospital's Motion to Reconsider ... is denied.

"Defendant, St. Vincent's Hospital, has made known on the record upon motion, at hearings and by way of briefs filed, its position relative to the production of certain documents in question. This Court has repeatedly ruled on these matters, always with a view to respecting St. Vincent's grounds regarding privilege, confidentiality and nondiscoverability. However, Stuart Pharmaceutical [Zeneca, Inc.] cannot properly or effectively defend itself in this case without these materials (which have twice previously been ordered produced). Without the benefit of said materials, the posture of Stuart Pharmaceutical is such that it cannot effectively prepare its defense, cannot meaningfully move for summary judgment, cannot meaningfully resist a motion for summary judgment filed by plaintiff and, by virtue of its present condition, cannot even meaningfully explore settlement possibilities.

"Hence, this Court restates its practice of seeking to insure the ends envisioned by our Legislature in affording protection to medical providers as respects quality assurance and control; however, where these 'protections' afforded a medical provider, concomitantly deprive a litigant of its ability to be afforded a full and fair trial by jury, the undersigned hereby declares that the intent of the legislature in its enactment of Title 22, Chapter 21, Section 8 and Title 34, Chapter 24, Section 58, Code of Alabama, was to enable described medical providers to consistently endeavor to improve, review, research, investigate and promulgate policies, practices and procedures which would continuously monitor and improve the level of care provided to hospital patients.

"To enforce or construe the aforementioned Code sections in such a manner as to deprive or deny Stuart Pharmaceutical its right or ability to demonstrate its own measures directed toward the improvement, review, research, investigation, and loss prevention regarding users of its products would patently amount to unequal treatment under the law.

"Wherefore, production is Ordered within 72 hours."

St. Vincent's asserts that the trial judge's order declares that §§ 22-21-8 and 34-24-58 are unconstitutional, as violating the plaintiff's right to trial by jury, and it seeks a writ of mandamus. We disagree. The trial judge merely observed that if the statutes were construed to preclude all discovery, the statute would "amount to unequal treatment under the law."

A constitutional issue can be reached by this Court only when it has been raised by a party at the trial level and the attorney general has been served pursuant to § 6-6-227 and Rule 44, A.R.App.P. When a party challenging the constitutionality of a statute fails to serve the attorney general, the trial court has no jurisdiction to decide the constitutional claim, and any judgment regarding that claim is void. Stringer v. State ex rel. Valeska, 628 So.2d 686 (Ala.Civ.App.1993).

Thus, the only question before us is whether the trial judge abused his discretion in ordering the discovery. St. Vincent's seeks a writ of mandamus directing the trial judge to vacate his discovery order of December 3, 1993. We have described the proof necessary for the issuance of a writ of mandamus:

"[M]andamus is a drastic and extraordinary writ to be issued only where 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 Edgar, 543 So.2d 682, 684 (Ala.1989); Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991).

The trial judge's discovery order comes as part of Zeneca's defense of this products liability action and as a result of St. Vincent's cross-claim against it in which the hospital asserted not only that Zeneca had failed to warn it concerning the dangers of Hibiclens, but also that if the company had adequately warned St. Vincent's that the product should not be used as a facial scrub, the hospital would have followed the warning. Thus, the cross-claim of St. Vincent's put at issue the matters that it claimed were privileged for purposes of discovery. St. Vincent's apparently recognized the inconsistency of this position and dismissed its cross-claim when it moved the court to "reconsider" the discovery order.

Although St. Vincent's has dropped its cross-claim against Zeneca, the discovery sought by Zeneca is critical to its defense. The changes in Zeneca's warnings regarding the product Hibiclens occurred in October 1987. The injury to the plaintiff Newton occurred in June 1988. Thus, it is important to Zeneca's defense to know what response St. Vincent's made to its warning. It...