Paradise v. Highlands Med. Ctr. (Ex parte Ismail)

• Decision Date: 12 August 2011
• Docket Number: 1100726.
• Citation: 78 So.3d 399
• Parties: Ex parte Younus ISMAIL, M.D.(In re Randy Paradise and Joy Paradise v. Highlands Medical Center et al.).
• Court: Alabama Supreme Court

78 So.3d 399

Ex parte Younus ISMAIL, M.D.(In re Randy Paradise and Joy Paradise

v.Highlands Medical Center et al.).

1100726.

Supreme Court of Alabama.

Aug. 12, 2011.

Lee T. Clanton of Porterfield, Harper, Mills & Motlow, P.A., Birmingham, for petitioner.

Brent L. Parker of Parker Law Firm, LLC, Grant, for respondents.

WISE, Justice.

Younus Ismail, M.D., petitions this Court for a writ of mandamus directing the trial court to vacate its February 11, 2011, order denying his motion for a summary judgment ¹ as to claims the plaintiffs, Randy Paradise and Joy Paradise, filed against him and to enter a summary judgment in his favor. We grant the petition and issue the writ.

Facts and Procedural History

On May 20, 2006, Randy Paradise was treated in the emergency room at Highlands Medical Center (“Highlands”). A chest X-ray was ordered as part of his treatment. While he was in the radiology department, Randy fell and sustained various injuries.

On May 16, 2008, the plaintiffs sued Highlands, alleging negligence and wantonness, pursuant to the Alabama Medical Liability Act, Ala.Code 1975, § 6–5–480 et seq. and § 6–5–540 et seq., in causing the injuries to Randy on May 20, 2006. They also included 17 fictitiously named defendants in their complaint and alleged that those defendants were “liable for their negligence and wantonness in causing injury to Randy Paradise.” The plaintiffs also served their first set of interrogatories on Highlands with the summons and the complaint.

On July 3, 2008, Highlands filed its initial response to the plaintiffs' first set of interrogatories. Interrogatory # 12 requested that Highlands

“[i]dentify each person who was scheduled to be on duty in the Emergency Room Department at Highlands Medical Center on May 20, 2006 [and] state where each of those persons [was] at the time of Mr. Paradise's fall.”

Highlands responded to this interrogatory as follows:

“[Highlands] objects to this interrogatory as it is so broad that it seeks information that is not discoverable in this action pursuant to § 6–5–551 of the Code of Alabama. [Highlands] does not object to identifying persons involved in the treatment and care of plaintiff.”

(Emphasis added.)

On May 3, 2010, the plaintiffs filed a motion to compel Highlands to provide complete responses to their first set of interrogatories. They attached to their motion letters to counsel for Highlands dated November 17, 2009, and February 15, 2010, in which they requested complete responses to their discovery requests. The trial court granted the plaintiffs' motion to compel on May 7, 2010. On July 6, 2010, when Highlands had not responded to their discovery requests, the plaintiffs filed a motion for sanctions.

On July 12, 2010, Highlands filed a response to the plaintiffs' motion for sanctions. It also filed a supplemental response to the plaintiffs' first set of interrogatories. With regard to interrogatory # 12, it stated:

“[Highlands] maintains its previously filed objection to this interrogatory as it is so broad that it seeks information that is not discoverable in this action pursuant to § 6–5–551 of the Code of Alabama . [Highlands] does not object to identifying persons involved in the treatment and care of [Randy Paradise]. According to the records the following were involved with the treatment and care of [Randy Paradise]: Shelby Hutchins, RN, Nathan Brown, RN, Carolyn Rousseau, RN, Carrie Atwell, RTT, medics to Highlands Medical Center were Michael Crane, Paramedic and Greg Gilliam, Basic EMT and medics from Highlands Medical Center to Huntsville were David Kennamer, Paramedic and Kristi Burns, intermediate EMT 2, Dr. Younus Ismail; Dr. John Reichle read the chest x-ray.”

On July 29, 2010, the plaintiffs filed an amended complaint in which they named Dr. Ismail as a defendant, substituting him for a fictitiously named defendant in the original complaint. They also alleged that “Dr. Younus Ismail has recently been disclosed by Highlands Medical Center as the emergency room physician in charge and control of Randy Paradise's treatment on May 20, 2006.”

On September 3, 2010, Dr. Ismail filed a motion to dismiss, arguing that the plaintiffs' amended complaint was barred by § 6–5–482, Ala.Code 1975, the two-year statute of limitations applicable to medical-malpractice cases. With regard to the plaintiffs' fictitious-party pleading, he asserted that that the plaintiffs did not set forth a cause of action against him, did not adequately identify him as a fictitiously named defendant, and did not exercise due diligence in attempting to discover his identity both before and after filing the complaint.

On December 8, 2010, the plaintiffs filed a motion opposing Dr. Ismail's motion to dismiss. In that motion, they alleged:

“Plaintiffs filed suit in this matter on May 16, 2008. Pursuant to Rule 9, Alabama Rules of Civil Procedure, Plaintiffs alleged numerous fictitious parties in their original complaint. Plaintiffs likewise filed numerous discovery requests with their original complaint on May 16, 2008. Included in Plaintiffs' discovery requests were requests regarding the disclosure of the physician who was responsible for Mr. Paradise's treatment on May 20, 2006.

“... Plaintiffs did request and receive a copy of Highlands Medical Center medical records, prior to the expiration of two years. However, both Dr. Joe Cromeans and Dr. Younus Ismail are identified as treating physicians in said records.... Therefore, Plaintiffs' discovery requests were directed to Highlands Medical Center requesting the correct identity of the physician who was responsible for the treatment of Randy Paradise.

“... Defendant, Highlands Medical Center, was served with said discovery requests on May 22, 2008. Defendant, Highlands Medical Center, failed to answer Plaintiffs' discovery requests. Therefore, after numerous correspondence and calls regarding said discovery, Plaintiffs filed a Motion to Compel said discovery responses on May 3, 2010. An Order granting Plaintiffs' Motion was entered on May [7], 2010.

“... Defendant, Highlands Medical Center, failed to comply with the Court's May [7], 2010 Order. Plaintiffs then filed a Motion for Sanctions against Defendant Highlands Medical Center on July 6, 2010. The disclosure of Dr. Younus Ismail did not occur until Defendant, Highlands Medical Center, filed answers to Plaintiffs' Interrogatories on July 12, 2010....

“... Within 17 days (July 29, 2010) of the disclosure of Dr. Ismail by Highlands Medical Center, Plaintiffs filed their Amended Complaint naming as an additional defendant, Dr. Younus Ismail.”

The plaintiffs also alleged that, “[i]n an effort to avoid Rule 11[, Ala. R. Civ. P.,] sanctions, [their] counsel diligently pursued the disclosure of the correct medical physician and did not file an amendment without this disclosure.”

The trial court conducted a hearing on Dr. Ismail's motion on February 7, 2011, and on February 11, 2011, it denied the motion. This petition followed.

Standard of Review

“ ‘ “[M]andamus is a drastic and extraordinary writ that 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 Horton, 711 So.2d 979, 983 (Ala.1998). “Subject to certain narrow exceptions ..., the denial of a motion to dismiss or a motion for a summary judgment is not reviewable by petition for writ of mandamus.” Ex parte Liberty Nat'l Life Ins. Co., 825 So.2d 758, 761 (Ala.2002) (citing Ex parte Jackson, 780 So.2d 681, 684 (Ala.2000)).’

“ Ex parte Alloy Wheels Int'l, Ltd., 882 So.2d 819, 821–22 (Ala.2003). One of the ‘narrow exceptions' to the general rule that a ruling on a summary-judgment motion is not reviewable by a petition for a writ of mandamus is the denial of a summary-judgment motion when ‘the undisputed evidence shows that the plaintiff failed to act with due diligence in identifying the fictitiously named defendant as the party the plaintiff intended to sue.’ Ex parte Snow, 764 So.2d 531, 537 (Ala.1999). In reviewing the grant or denial of a summary-judgment motion,

“ ‘ “we must determine whether there was a genuine issue of material fact and, if not, whether the movant was entitled to a judgment as a matter of law. Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and resolve all reasonable doubts against the movant.”

“ ‘ Brewer v. Woodall, 608 So.2d 370, 372 (Ala.1992).

“ ‘ “A summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The party moving for the summary judgment, here [Chemical Lime], has the burden of establishing a prima facie showing that there is no genuine issue of material fact. Berner v. Caldwell, 543 So.2d 686 (Ala.1989). If the moving party makes such a showing, then the burden shifts to the nonmoving party to rebut that showing by presenting substantial evidence creating a genuine issue of material fact. Substantial evidence is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”

“ ‘ Young v. La Quinta Inns, Inc., 682 So.2d 402, 403 (Ala.1996).’

“ Ex parte Alloy Wheels, 882 So.2d at 822.”

Ex parte Chemical Lime of Alabama, Inc., 916 So.2d 594, 596–97 (Ala.2005).

Discussion

Dr. Ismail argues that the trial court should have entered a summary judgment in his favor on the ground that the plaintiffs' claims against him were barred by the two-year statute of limitations for medical-malpractice actions set forth in § 6–5–482, Ala.Code 1975.² He bases this argument...