Snow v. Mobile Infirmary Ass'n (Ex parte Mobile Infirmary Ass'n)
| Decision Date | 25 May 2018 |
| Docket Number | 1160731,1160815 |
| Citation | 278 So.3d 1195 |
| Parties | EX PARTE MOBILE INFIRMARY ASSOCIATION d/b/a Mobile Infirmary Medical Center (In re: Connie McLain Snow, as Administrator of the Estate of Rhonda Lynn Snow, deceased v. Mobile Infirmary Association d/b/a Mobile Infirmary Medical Center) Ex parte Mobile Infirmary Association d/b/a Mobile Infirmary Medical Center (In re: Connie McLain Snow, as Administrator of the Estate of Rhonda Lynn Snow, deceased v. Mobile Infirmary Association d/b/a Mobile Infirmary Medical Center) |
| Court | Alabama Supreme Court |
A. Edwin Stuardi III, Russell C. Buffkin, and Karen T. Luce of Helmsing, Leach, Herlong, Newman & Rouse, P.C., Mobile, for petitioner.
Toby D. Brown, David S. Cain, Jr., David G. Wirtes, Jr., and Joseph D. Steadman of Cunningham Bounds, LLC, Mobile, for respondents.
In these petitions, which we have consolidated, Mobile Infirmary Association d/b/a Mobile Infirmary Medical Center ("MIMC"), the defendant below, seeks a writ of mandamus directing the Mobile Circuit Court to vacate portions of its May 5, 2017, discovery orders. More specifically, in case no. 1160731, MIMC seeks mandamus review of the portion of the trial court's order compelling MIMC to produce certain documents previously submitted to the trial court for in camera review on the ground that the documents are protected from discovery under § 6–5–551 and/or § 22–21–8, Ala. Code 1975. In case no. 1160815, MIMC seeks mandamus review of another May 5, 2017, order denying MIMC's motions seeking reconsideration of, or, alternatively, a protective order respecting, the trial court's November 10, 2016, order compelling MIMC's response to various discovery requests. In each case, we grant MIMC's petition and issue the writ.
MIMC operates a general medical/surgical facility in Mobile ("the medical center"). On September 4, 2015, the plaintiff/respondent, Connie McLain Snow ("Connie"), filed, in his capacity as administrator of the estate of Rhonda Lynn Snow ("Rhonda"), deceased,1 a complaint in the Mobile Circuit Court against MIMC and numerous fictitiously named defendants. Connie's complaint alleged a single count of negligence2 pursuant to Alabama's Medical Liability Act ("the AMLA")3 in connection with Rhonda's treatment at the medical center on December 10–11, 2013, for surgery on her right foot. According to the complaint, Rhonda was, on December 10, 2013, transferred following surgery to an inpatient room "for pain control and further management of antibiotics." At around 5:50 a.m. on December 11, 2013, Lateedra Barnes, R.N., an employee of MIMC, allegedly administered a dose of Dilaudid
to Rhonda; thereafter, at 6:40 a.m. Rhonda was found "non-responsive" in her room and the staff at the medical center were unable to resuscitate her. Rhonda remained on life support until her death on January 3, 2014. In his complaint, Connie alleged that MIMC was negligent in developing effective policies and procedures regarding, and in training its personnel on, the proper "care, monitoring, diagnostics and/or treatment of Rhonda" and that it had breached the accepted standard of care in its treatment of Rhonda. More specifically, Connie alleged that MIMC's employees had "failed to appropriately monitor the respiratory depressive effect" of Dilaudid on Rhonda following administration of the drug.
Connie's complaint was accompanied by a combined set of "First Interrogatories and Requests for Production" of documents directed to MIMC. Among the documents Connie sought from MIMC were documents related to certain MIMC policies and procedures both at the time of Rhonda's treatment and "currently." Other requests sought "all" procedural rules governing the administration of opiate medication to certain patients, including those suffering from sleep apnea
, obesity, or obstructed airways and/or for the "ongoing clinical monitoring" of such patients, pain-management assessment of such patients, and "medication errors." In response, MIMC provided responsive documentation to some requests and objected to others on the basis that they were "not discoverable" on various grounds, including that they were privileged under either § 6–5–5514 and/or § 22–21–8.5
Connie subsequently moved to compel "full and complete responses" to his first discovery requests and further requested that the trial court require MIMC to "substantiate" the claimed privileges with a privilege log conforming to the requirements of Rule 26(b)(6)(A), Ala. R. Civ. P. MIMC filed in March 2016 a response in opposition to Connie's motion to compel and an accompanying request for a protective order as to the personnel files of certain individuals. MIMC's response was accompanied by affidavit testimony from its risk manager, Linda A. Gamper, aimed at establishing that communications and documents prepared in response to Connie's potential claim both were attorney work product prepared in anticipation of litigation and "were created for quality assurance purposes to assess the quality of care of all patients at [the medical center]," rather than in the ordinary course of MIMC's business. MIMC later filed, at the apparent request of the trial court, a supplemental brief discussing caselaw interpreting and applying both § 6–5–551 and § 22–21–8.
Following a hearing, the trial court entered, on April 29, 2016, an order compelling MIMC to respond to Connie's first discovery requests. In that order, the trial court emphasized "the distinction between discoverability and admissibility" and noted that, although admissibility of the responses would be considered at a later date, it found as follows on the issue of "discoverability":6
The trial court also ordered MIMC to produce a privilege log for all documents withheld from production as privileged under either § 6–5–551 or § 22–21–8. It further directed:
"As for all documents or things withheld, each and every one of them shall be sequentially Bates stamped numbered from MIMC ... so the Court can determine which, if any, of the withheld documents should be produced for the Court's in camera inspection and determination of whether any one or more should be ordered produced in response to [Connie's] discovery requests."
On May 13, 2016, MIMC filed a "Motion to Reconsider and Motion for Protective Order" in which, among other relief, MIMC asked to be excused from certain enumerated provisions of the trial court's April 29, 2016, order, including, among other objections, "the production of information protected by ... §§ 22–21–8 and 6–5–551."
Connie subsequently propounded a second set of requests for production to MIMC. Those new requests sought, among other things, certain "surgical postoperative standard orders made available to physicians ... from December 2013 to the present." MIMC objected to producing the requested documents on grounds including the exemptions in § 6–5–551 and § 22–21–8. At or around this same time, Connie also propounded a second set of interrogatories to MIMC that, among other requests, sought information regarding MIMC's accreditation status and a third set of requests for production seeking information pertaining to any documentation evidencing MIMC's response to "The Joint Commission Sentinel Event Alert # 49, Safe Use of Opioids in Hospitals." MIMC again objected, citing § 6–5–551, § 22–21–8, and the attorney-client privilege. MIMC did, however, produce certain documentation, including "all policies and procedures in place in December of 2013." Connie subsequently propounded to MIMC a fourth set of requests for production seeking information "from 2012 to the present" on any and all communications or correspondence between MIMC and either its employees or other health-care providers regarding the dispensation of "narcotics, opioids, Dilaudid and/or Hydromorphone" to patients generally, and to certain high-risk patients specifically, and regarding the monitoring of patients following administration of the above-described substances.
On August 12, 2016, the trial court entered an order requiring MIMC to produce the documents sought by the second set of requests for production, including reports tracking Barnes's activities and locations on December 10–11, 2013; any and all "surgical postoperative standard orders made available to physicians at [the medical...
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