Ex parte Wilson

• Decision Date: 20 December 2002
• Citation: 854 So.2d 1106
• Parties: Ex parte Curtis WILSON, as administrator and personal representative of the estate of Julia Wilson, deceased. (In re Curtis Wilson, as administrator and personal representative of the estate of Julia Wilson, deceased v. Anesthesiology of Selma, P.A., et al.)
• Court: Alabama Supreme Court

854 So.2d 1106

Ex parte Curtis WILSON, as administrator and personal representative of the estate of Julia Wilson, deceased.

(In re Curtis Wilson, as administrator and personal representative of the estate of Julia Wilson, deceased v. Anesthesiology of Selma, P.A., et al.)

1011505.

Supreme Court of Alabama.

December 20, 2002.

Rehearing Denied February 28, 2003.

Gregory B. Breedlove and David G. Wirtes, Jr., of Cunningham, Bounds, Yance, Crowder & Brown, L.L.C., Mobile; and John M. Gibbs of Gibbs & Sellers, Demopolis, for petitioner.

Jasper P. Juliano and J. Alex Wyatt of Parsons, Lee & Juliano, P.C., Birmingham, for respondents Calvin Richard Stewart, M.D., and Anesthesiology of Selma, P.A.

Tabor Novak, Jr., and Allison L. Alford of Ball, Ball, Matthews & Novak, P.A., Montgomery, for respondent Samer Fahoum, M.D. Michael D. McKibben, Phillip H. Butler, and Richard L. Sharff of Bradley Arant Rose & White, LLP, Birmingham, for respondents William C. Kitchens, M.D., and Robert J. Cerfolio, M.D.

LYONS, Justice.

The plaintiff, Curtis Wilson, acting as administrator of the estate of his deceased wife, Julia Wilson, petitions this Court for a writ of mandamus ordering the trial court to vacate its order transferring this case from Wilcox County to Dallas County. We grant the petition.

I. Factual Background

On July 12, 1999, Julia Wilson, who at the time of her death was a resident of Wilcox County, received medical treatment at Selma Baptist Hospital in Dallas County. At some point during a surgical procedure, her esophagus was perforated. Mrs. Wilson remained hospitalized in Selma until July 15, 1999, when she was transferred to the University of Alabama Medical Center in Jefferson County, where she died on August 1, 1999.

II. Course of Proceedings

On May 16, 2001, Curtis Wilson, as administrator of his wife's estate, filed a medical-malpractice action in the Wilcox Circuit Court. He alleges that the Dallas County defendants (the doctors and nurse-anesthetists involved in the decedent's medical care in Dallas County and other fictitiously named defendants) negligently perforated Mrs. Wilson's esophagus and negligently failed to adequately assess, monitor, diagnose, and treat Mrs. Wilson, who remained at Selma Baptist Hospital until July 15, 1999. Wilson also alleges that the Jefferson County defendants (the doctors involved in the decedent's medical care in Jefferson County and other fictitiously named defendants) were negligent in their care of Mrs. Wilson by failing to properly diagnose and treat her esophageal perforation.

Several defendants filed a motion to transfer the case to the Dallas Circuit Court on the basis of forum non conveniens. Wilson opposed that motion. All of the acts of negligence alleged by Wilson occurred in either Dallas County or Jefferson County. All of the named defendants work in either Dallas County or Jefferson County, 11 rendering medical care exclusively in Dallas County and 3 rendering medical care exclusively in Jefferson County. The medical records relating to the decedent's care in Dallas County are located exclusively in Dallas County, and the support personnel who cared for the decedent there work and/or reside in Dallas County. Selma Baptist Hospital provided evidence after the motion for a change of venue was filed indicating that approximately 20 of its employees had participated in the decedent's treatment and are potential witnesses in the case and that the majority of those 20 reside in Dallas County. The trial court granted the motion for a change of venue on March 25, 2002, and entered an order transferring the case to the Dallas Circuit Court. Wilson filed this petition for a writ of mandamus on May 3, 2002.

III. Standard of Review

The standard for obtaining mandamus review before this Court is a high one.

"A writ of mandamus is an extraordinary remedy, and it will be `issued 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 United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993). A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal.

Ex parte Drill Parts & Serv. Co., 590 So.2d 252 (Ala.1991)."

Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998).

"However, `a petition for a writ of mandamus is the proper means by which to challenge an order by a trial court transferring an action to another county.' Ex parte Bruner, 749 So.2d 437, 439 (Ala. 1999) (citing Ex parte AU Hotel, Ltd., 677 So.2d 1160 (Ala.1996); and Ex parte Neely, 653 So.2d 945 (Ala.1995))."

Ex parte Boshell, 805 So.2d 675, 676 (Ala. 2001).

IV. Venue Under the Alabama Medical Liability Act of 1987

The proper venue for a medical-malpractice action brought pursuant to the Alabama Medical Liability Act of 1987, § 6-5-540 et seq., Ala.Code 1975 ("the Act"), is set forth at § 6-5-546, which provides:

"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. If at any time prior to the commencement of the trial of the action it is shown that the plaintiff's injuries or plaintiff's decedent's death did not result from acts or omissions which took place in more than one county, on motion of any defendant the court shall transfer the action to such county wherein the alleged acts or omissions actually occurred. 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.) The Act "applies to all actions against health care providers based on acts or omissions accruing after June 11, 1987, and as to such causes of action, shall supersede any inconsistent provision of law." § 6-5-552, Ala.Code 1975.

The text of § 6-5-546 clearly requires that in a wrongful-death action where the malpractice is alleged to have occurred in more than one county, "the action must be brought" in the county wherein the plaintiff's decedent resided at the time of the act or omission. (Emphasis added.) It is undisputed that this action involves alleged breaches of the standard of care occurring in more than one county. Venue for this action at the time it was filed was therefore proper only in Wilcox County, where the decedent resided at the time of her death.

Section 6-5-546 provides for the transfer of actions for the convenience of parties and witnesses, in the interest of justice, "to any other county where it might have been brought hereunder." The trial court, on the motion of the defendants seeking a transfer of the case to a different venue on grounds of convenience, transferred the action to Dallas County, one of the two counties where the acts of medical malpractice were alleged to have occurred. Wilson asserts that the trial court could not transfer the action to Dallas County without violating the plain meaning of the last sentence of § 6-5-546 permitting transfers for convenience only to a county "where it [the action] might have been brought hereunder." The trial court in its order rejected this construction of § 6-5-546:

"Under that argument, the forum non conveniens language [in] 6-5-546 has no effect. The forum non conveniens language is placed in that statute for a reason. Under [Wilson's] analysis a medical malpractice case could never be transferred if it was initially filed in a county where the venue was proper. The Court does not agree with this analysis."

The defendants argue that if Wilson is correct, the forum non conveniens language in the last sentence of the statute has no meaning because in cases involving acts alleged to have occurred in more than one county, venue would always be in the decedent's county of residence, regardless of the convenience of parties and witnesses and the interest of justice.

Section 6-3-21.1, Ala.Code 1975, the general provision governing a change of venue for the convenience of parties and witnesses or in the interest of justice, permits transfer to "any court of general jurisdiction in which the action might have been properly filed." As previously noted, the last sentence of § 6-5-546 permits transfers for convenience only to a county "where it [the action] might have been brought hereunder," i.e., under the Act. (Emphasis added.) This limitation sets the test for venue in § 6-5-546 apart from the test as to where the action might have been brought under the general principles of venue under § 6-3-21.1. Any inconsistency in a provision of the Act with a general provision of law must be resolved in favor of the provision of the Act. § 6-5-552.

We reiterate the clear language of the second sentence of § 6-5-546:

"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

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