Health Care Auth. for Baptist Health v. Davis, 1090084.

• Decision Date: 17 May 2013
• Docket Number: 1090084.
• Citation: 158 So.3d 397
• Parties: HEALTH CARE AUTHORITY FOR BAPTIST HEALTH, an affiliate of UAB Health System, d/b/a Baptist Medical Center East v. Kay E. DAVIS, as executrix of the estate of Lauree Durden Ellison, deceased.
• Court: Alabama Supreme Court

158 So.3d 397

HEALTH CARE AUTHORITY FOR BAPTIST HEALTH, an affiliate of UAB Health System, d/b/a Baptist Medical Center East

v.Kay E. DAVIS, as executrix of the estate of Lauree Durden Ellison, deceased.

1090084.

Supreme Court of Alabama.

May 17, 2013.

As Modified on Denial of Rehearing Feb. 28, 2014.

Bernard Harwood, Jr., of Rosen Harwood, P.A., Tuscaloosa; Oakley Melton, Jr., Joe Espy III, James E. Williams, and J. Flynn Mozingo of Melton, Espy & Williams, PC, Montgomery; and Pamela B. Slate and Sabrina L. Comer of Slate Carter Comer PLLC, Montgomery (brief on rehearing filed by Bernard Harwood, Jr., of Rosen Harwood, P.A., Tuscaloosa; Oakley Melton, Jr., Joe Espy III, James E. Williams, and J. Flynn Mozingo of Melton, Espy & Williams, PC, Montgomery; and Pamela B. Slate and Elizabeth B. Carter of Hill, Hill, Carter, Franco, Cole & Black, PC, Montgomery), for appellant.

Bruce J. McKee and S. Shay Samples of Hare, Wynn, Newell & Newton, LLP, Birmingham, for appellee.

David G. Wirtes, Jr., and George M. Dent III of Cunningham Bounds, LLC, Mobile, for amici curiae Unaffiliated Alabama Educators, Lawyers, and Retired Judges, in support of the first (appellee's) application for rehearing.

Leila H. Watson, Ernest Cory, and Annesley H. DeGaris of Cory Watson Crowder & DeGaris, P.C., Birmingham, amicus curiae Alabama Association for Justice, in support of the first (appellee's) application for rehearing.appellant.

Lawrence T. King of King Lyons, LLC, Birmingham; and William Powell of Powell & Denny, P.C., Birmingham, for amici curiae AFL–CIO Alabama, Becky Skinner, and Power & Denny, P.C., in support of the first (appellee's) application for rehearing and in opposition to the second (appellant's) application for rehearing.

Sybil V. Newton and Randal H. Sellers of Starnes Davis Florie LLP, Birmingham, for amicus curiae Board of Trustees of the University of Alabama, in opposition to the first (appellee's) application for rehearing and in support of the second (appellant's) application for rehearing.

On Application for Rehearing

MURDOCK, Justice.

This medical-malpractice case is before us on rehearing. This Court previously issued an opinion (1) vacating the judgment of the Montgomery Circuit Court in favor of Kay E. Davis, as executrix of the estate of Lauree Durden Ellison, deceased, and against the Health Care Authority for Baptist Health, an affiliate of UAB Health System (“the Authority”), and (2) dismissing the Authority's appeal and the case on the ground that the Authority was entitled to State immunity under § 14, Ala. Const.1901. Davis filed an application for rehearing. We withdraw the January 14, 2011, opinion, and substitute the following opinion.

I. Background Facts and Procedural History

On September 3, 2005, Lauree Durden Ellison visited the emergency room of Baptist Medical Center East (hereinafter “BMCE”), a hospital operated by the Authority and formerly operated by Baptist Health, a private nonprofit corporation. Ellison's visit was for an evaluation after she had fallen at home. At the time of the visit, Ellison was 73 years old, and she suffered from a number of chronic preexisting medical conditions, including respiratory problems, diabetes

, hypertension, chronic pain, gastrointestinal bleed, and stroke-related problems.

The initial examination of Ellison did not indicate that she had an infection, and all other tests and X-rays were unremarkable for injuries caused by the fall. While she was in the emergency room, however, Ellison mentioned that she had a sore throat. The emergency-room doctor ordered a test for streptococcus. Thereafter, Ellison was discharged from the emergency room to return home.

After Ellison was discharged, the BMCE laboratory grew the culture taken from the streptococcus test. The culture reflected the presence of methicillin-resistant staphylococcus aureus (hereinafter “MRSA”). Although the BMCE laboratory recorded the results in its electronic medical-records system, the results were not reported directly to Ellison's treating physician.

Over the next two months, Ellison received medical treatment for other medical conditions from providers other than BMCE. She did not complain of a sore throat during that period. On November 3, 2005, however, she returned to BMCE's emergency room complaining of a cough

and moderate to severe respiratory distress. Ellison died on November 8, 2005.

On May 25, 2006, Davis, as executrix of Ellison's estate, filed a complaint in the trial court, naming as defendants the Authority and two physicians at BMCE.¹ Before trial, the Authority asserted that any damages awarded against it were subject to the $100,000 statutory cap on damages set out in § 11–93–2, Ala.Code 1975, which it argued was applicable to the Authority pursuant to § 22–21–318(a)(2) of the Health Care Authorities Act of 1982, Ala.Code 1975, § 22–21–310 et seq. (“the HCA Act”).

At trial, Davis presented the testimony of expert witnesses who opined that BMCE had breached the applicable standard of care by not reporting its finding of MRSA directly to Ellison's attending physician. Davis's expert witnesses opined that Ellison died from MRSA-related pneumonia

and that the failure of the BMCE laboratory to report the finding of MRSA to Ellison's doctor caused her death. Conversely, the Authority offered the testimony of several expert witnesses who testified that MRSA does not cause a sore throat; that, because Ellison was not suffering from a throat infection when the streptococcus culture was taken, the standard of care did not require that anyone be notified of the presence of MRSA, which is present in a large part of the population without symptoms or consequences; that notifying Ellison's doctor of the finding of MRSA would not have changed Ellison's course of treatment; and that Ellison died of congestive heart failure

unrelated to the MRSA, and not of MRSA-related pneumonia.

The jury returned a verdict in favor of Davis and against the Authority in the amount of $3,200,000, and the trial court entered a judgment for Davis in that amount. The Authority filed a postjudgment motion seeking, in part, a remittitur of the judgment from $3,200,000 to $100,000 based on the statutory cap for damages set forth in § 11–93–2. On September 29, 2009, the trial court entered an order denying the Authority's postjudgment motion.

The Authority appealed. On appeal, it argues that it possesses State immunity, also known as sovereign immunity, pursuant to § 14, Ala. Const.1901, which provides “[t]hat the State of Alabama shall never be made a defendant in any court of law or equity.” Also, the Authority argues that the trial court erred by not remitting the $3,200,000 damages award to $100,000 pursuant to § 11–93–2. In response, Davis contends that the Authority does not qualify for State immunity and, further, does not qualify for the protection of the $100,000 damages cap in § 11–93–2.

II. Discussion

As noted above, Baptist Health at one time operated certain hospitals in Montgomery, including BMCE. When Baptist Health encountered financial problems in conjunction with the operation of those hospitals, it sought the assistance of the University of Alabama Board of Trustees (“the Board”).² In June 2005, the Board adopted a resolution authorizing the formation of the Authority:

“WHEREAS, The Board of Trustees of The University of Alabama (‘the Board’) owns University of Alabama Hospital and related health care facilities located in Birmingham, Alabama (‘Hospital’); and

“WHEREAS, the Hospital is managed by the UAB Health System (‘UABHS'), pursuant to an Amended and Restated Joint Operating Agreement dated effective January 1, 2003 (‘JOA’); and

“....

“WHEREAS, after careful consideration, UABHS and Baptist [Health] desire to affiliate for the purpose of improving the overall efficiency of Baptist [Health's] clinical operations and for arranging for Baptist [Health] financial support of the Board's academic and research mission through contributions to UABHS; and

“WHEREAS, by separate resolution on this same date, The Board of Trustees of The University of Alabama approved an Affiliation Agreement between the UA Board, UABHS and Baptist [Health]; and

“WHEREAS, the Affiliation Agreement provides for the establishment of a health care authority by the UA Board, under the terms and conditions set forth in the Affiliation Agreement; ...

“....

“NOW, THEREFORE, BE IT RESOLVED that The Board of Trustees of The University of Alabama hereby declares that it is wise, expedient, and necessary that a health care authority be formed.”

After explaining that the purpose of the Authority is “to own and operate one or more hospitals and a health care delivery system,” the certificate of incorporation states:

“Pursuant to an Affiliation Agreement dated July 1, 2005 (the ‘Affiliation Agreement’) by and among the ... Board, Baptist Health, ... and UAB Health System, an Alabama nonprofit corporation (‘UABHS'), Baptist Health will transfer its hospitals and related assets to the Authority. The Authority shall have full governance powers with respect to its business and affairs, subject to the provisions of the Affiliation Agreement, including without limitation the provisions related to ‘Restricted Transactions' contained in the Affiliation Agreement. The Affiliation Agreement, including any amendments made to such Agreement from time to time in accordance with the terms thereof, are hereby incorporated by reference in this certificate of incorporation.”

(Emphasis added.) The certificate of incorporation also states:

“Subject to the provisions of the Affiliation Agreement, the Authority shall have and may exercise all of the powers and authorities set out in the Enabling Law [i.e., the HCA Act], for corporations organized thereunder, together with such additional powers, rights, and prerogatives as are now or may hereafter be provided by law. In addition thereto, the Authority shall have the extraordinary powers set out in Section 22–21–319 of the

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