In re Estate of Elliott by and through Windham

• Decision Date: 07 September 2018
• Docket Number: 1170564
• Citation: In re Estate of Elliott by and through Windham, 272 So.3d 1021 (Ala. 2018)
• Parties: EX PARTE the ESTATE OF Fredrick O'Brian ELLIOTT, deceased, BY AND THROUGH his personal representative, Sonya WINDHAM (In re The Estate of Fredrick O'Brian Elliott, deceased, by and through his personal representative, Sonya Windham v. Brookwood Baptist Health 1, LLC, Baptist Health System, Inc., BBH PBMC, LLC, and Courtney Johnston)
• Court: Alabama Supreme Court

272 So.3d 1021

EX PARTE the ESTATE OF Fredrick O'Brian ELLIOTT, deceased, BY AND THROUGH his personal representative, Sonya WINDHAM

(In re The Estate of Fredrick O'Brian Elliott, deceased, by and through his personal representative, Sonya Windham

v.Brookwood Baptist Health 1, LLC, Baptist Health System, Inc., BBH PBMC, LLC, and Courtney Johnston)

1170564

Supreme Court of Alabama.

September 7, 2018

Charles C. Tatum, Jr., and Seth L. Diamond, Jasper, for petitioner.

Jasper P. Juliano of Parsons, Lee & Juliano, P.C., Birmingham, for respondentsCourtney Johnston and Baptist Health System, Inc., d/b/a Princeton Baptist Medical Center.

WISE, Justice.

The petitioner, the estate of Fredrick O'Brian Elliott, deceased, by and through his personal representative, Sonya Windham("the estate"), filed a petition for a writ of mandamus asking this Court to direct the Jefferson Circuit Court to vacate its March 7, 2018, order insofar as it denies certain requests for production of documents made by the estate.We grant the petition and issue the writ.

Factual Background and Procedural History

On July 14, 2017, the estate filed a wrongful-death action against Baptist Health System, Inc., d/b/a Princeton Baptist Medical Center ("PBMC"),¹ and Courtney Johnston(hereinafter collectively referred to as "the defendants") and various fictitiously named defendants.The complaint alleged that, on September 7, 2015, Elliott was admitted to Princeton Baptist Medical Center complaining of nausea, vomiting, and gastritis ; that, as part of his treatment, Elliott "was ordered to undergo full bowel rest by having Trans-Peritoneal Nutrition (TPN) administered through a Peripherally Inserted Central Catheter (PICC Line)"; that a PICC line was inserted into Elliott's right arm, which line was used to administer a daily dose of TPN, which came in a sterile bag; and that, despite the treatment, Elliott's symptoms did not subside.The complaint further alleged that, on the morning of September 18, 2015, Courtney Johnston, Elliott's nurse, administered a TPN bag to Elliott; that Elliott continued to experience bouts of nausea and vomiting that interrupted the TPN infusion; that, later that day, while Windham, who is Elliott's mother, was present, Johnston came into Elliott's room and discarded the partially full TPN bag into the trash; that Windham was concerned and questioned Johnston because Elliott had not finished his entire nutritional dose; that Johnston told Windham that she was following doctor's orders; that Windham asked Johnston for the name of the doctor who had ordered the TPN bag to be removed and Johnston stated that she did not know; that Windham asked Johnston to find the doctor so she could talk to him; that Johnston became agitated and left the room; that Johnston returned to the room a few minutes later, took the TPN bag out of the trash can and reconnected it to Elliott's PICC line; and that Johnston apologized to Windham and told her that she had read the order incorrectly.The complaint also alleged that, soon after, Elliott became febrile; that, on September 21, 2015, Elliott's temperature spiked to 102.5º, he was sweating profusely, and he became "profoundly tachycardic and hypertensive"; that blood cultures revealed that Elliott had "a nosocomial infection and was septic with Proteus Mirabilis"; that the contaminated PICC line was later confirmed as the source of Elliott's infection; that Elliott was treated with intravenous antibiotics; that, although Elliott's bacterial infection seemed to resolve, "the damage done to [his] heart from the nosocomial infection was insurmountable"; that Elliott's heart suddenly stopped beating on September 30, 2015; that Elliott could not be resuscitated; and that Elliott was pronounced dead at 6:15 p.m. that evening.

The complaint alleged that the defendants and the fictitiously named defendants had failed to discharge their obligations of care to Elliott and that, as a result, Elliott "suffered fatal injuries, extreme pain, suffering, and mental anguish."It also alleged that the defendants' malpractice resulted, in part, "from a systemic failure to adequately document and treat patients" and "a failure to maintain medical records which contained sufficient information to justify the diagnosis and treatment of those patients including" Elliott; that the defendants"failed to document the results, including at a minimum, documented evidence of assessments of the needs of [Elliott], for the establishment of appropriate plans of care and treatment, and for the care and services provided during his treatment as a whole"; and that those acts and omissions occurred as a result of PMBC's "understaffing and/or failure to properly train its staff and/or the incompetence of its employee."The complaint alleged claims of negligence, wantonness, and negligent and/or wanton hiring, training, and supervision.PBMC and Johnston subsequently filed answers to the complaint.

On August 10, 2017, the estate filed its "Second Request for Production to All Defendants," in which it requested:

"1.The entire employment file for Courtney Johnston.

"2.Any and all disciplinary records related to Courtney Johnston.

"3.Any and all training records related to Courtney Johnston.

"4.Any and all nursing policies, procedures, rules, regulations, and training modules related to the use and care of PICC Lines, TPN, and aseptic technique.

"5.Any and all disciplinary records related to any nurse, agent, or employee or any other individual arising from or related to having provided care for Fredrick O'Brian Elliott.

"6.Any and all complaints, reports, inspections, audits, investigations or writing submitted to or received from any licensing agency, accrediting or regulatory agency, body, or governmental entity arising from or related providing care for Fredrick O'Brian Elliott.

"7.Any document, writing, statement, record, related to any internal audits, investigations, root cause analysis, or finding performed by any of the above named defendants arising from or related to providing care for Fredrick O'Brian Elliott."

The defendants filed an "Initial Response (Objections) to [the Estate's]Second Request for Production to All Defendants."With regard to each request contained in Requests 1, 2, 5, 6, and 7, the defendants stated:

"Defendants object to this request for that as it is sufficiently broad that it seeks information that is privileged and not discoverable in this case pursuant to one or more of the following:

"a.Section 22-21-8 of the Code of Alabama [1975]

"b.Section 34-24-58 of the Code of Alabama [1975]

"c.Section 34-24-59 of the Code of Alabama [1975]

"d.Section 6-5-333 of the Code of Alabama [1975]

"e.Section 6-5-551 of the Code of Alabama [1975]."

(Emphasis omitted.)The defendants also asserted that Requests 1 and 2 requested "private personal identifying information."The defendants did not object to Requests 3 and 4.The defendants did not include any additional information or argument regarding those requests.

On January 4, 2018, the estate filed a "Motion to Compel Defendants to Produce Documents Responsive to [the Estate's]Second Request for Production."In its motion to compel, the estate argued:

"4.As it stands, defendants' objections are nothing more than shot-gun boilerplate responses that have no merit which amount to dilatory tactics and gamesmanship.

"5.Rule 26(b)(6) of the Alabama Rules of Civil Procedure requires any party withholding information on a claim of privilege or work product shall be supported by a description of the document sufficient to be able to contest the claim.

"6.Defendants have not provided a privilege log and they have not set forth why the requested information is over broad, privileged, and not discoverable.²

"7.Without defendants' answers, plaintiff will be unfairly prejudiced and cannot adequately prepare for trial.

"[8].Plaintiff requests that the court order the defendants to produce documents responsive to each of plaintiff's requests and to provide a privilege log with sufficient detail, for the requests that were objected to, within fourteen days, or such other time deemed reasonable by the court, and for payment of the costs incurred in filing this motion in an amount the court deems equitable and just.

"_____________

"²‘The party asserting the quality-assurance privilege has the burden of proving its applicability as well as the prejudicial effect of disclosing the information in question.Ex parte Coosa Valley Health Care, Inc., 789 So.2d 208, 219(Ala.2000)(noting that, with regard to § 22-21-8, "the burden of proving that a privilege exists and proving the prejudicial effect of disclosing the information is on the party asserting the privilege").’Ex parte Altapointe Health Sys.[, Inc.],[Ms. 1160544, Sept. 8, 2017]. ‘ "Whether a communication is privileged is a question of fact to be determined by the trial court from the evidence presented ...."Exxon Corp. v. Department of Conservation & Natural Res., 859 So.2d 1096, 1103(Ala.2002)(quotingEx parte DCH Reg'l Med. Ctr., 683 So.2d 409, 412(Ala.1996) ).The burden is on the party asserting the attorney-client privilege to establish the existence of an attorney-client relationship as well as other facts demonstrating the claim of privileged information.Ex parte DCH Reg'l Med. Ctr., 683 So.2d at 412.’Ex parte Nationwide Mut. Ins. Co., 990 So.2d 355, 363(Ala.Mar. 7, 2008)."

On February 1, 2018, the defendants filed a response to the estate's motion to compel.The defendants again did not object to Requests 3 and 4.However, with regard to the remaining requests, the defendants stated:

"REQUEST 1.The entire employment file for Courtney Johnston.

"Defendants have objected, at least in part, to this request as it seeks the ‘entire’ employment file for Courtney Johnston.That file will contain information and things that are not discoverable in this action.As stated in response to number 3, these defendants have

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