Alabama 2022 Medical Malpractice Update

Discovery of Other Acts and Omissions

Ex parte Huntsville Emergency Med. Servs., 2022 Ala. LEXIS 85* (Sep. 9, 2022)

In this wrongful death action, Plaintiff’s decedent sought treatment at Huntsville Hospital for chest pain and fatigue. The patient’s physicians concluded that he should be transferred to UAB Hospital for further evaluation and treatment. Because the patient was a high-risk cardiac patient, Huntsville Hospital contacted HEMSI and ordered an advanced life support ambulance for the transfer. The ambulance was staffed with an EMT and a paramedic. The EMT was to drive the ambulance while the paramedic was tasked with monitoring the patient throughout the trip to Birmingham. Even before leaving Huntsville Hospital, the EMT began falling asleep or passing out. Once on the road, he struggled to stay awake and eventually advised the paramedic that he could no longer drive. After consulting HEMSI management, the paramedic began driving and the EMT, instead of monitoring the patient, fell asleep in the back of the ambulance. He even slept through the need for the paramedic to pull the ambulance over on the side of the road to provide the patient with needed treatment.

Plaintiff alleged common law counts relating to the EMT’s driving as well as HEMSI’s wrongful hiring, training, supervision, and retention of the EMT as a driver. Additionally, Plaintiff alleged medical malpractice pursuant to the Alabama Medical Liability Act. In discovery, Plaintiff sought evidence of other acts and omissions. Such evidence is generally prohibited from discovery pursuant to the AMLA. The trial court denied HEMSI’s motion for protective order and HEMSI filed a petition for writ of mandamus. The petition was granted in part and denied in part.

First, the Alabama Supreme Court addressed whether Plaintiff’s “driving claims” were covered by the AMLA. This question is significant since the prohibition of discovery of other acts and omissions generally still applies in negligent hiring, training, supervision, or retention claims which are typically governed by the AMLA. The Court found the claims were subject to the AMLA. There is, however, an exception which applies where acts and omissions which may be relevant to establish that the employee was incompetent are specifically detailed in the Plaintiff’s complaint. Here, Plaintiff had specifically alleged that the EMT had been involved in previous on-the-job incidents demonstrating that he was unfit for his job. In doing so, Plaintiff identified specific dates for these alleged incidents. Apparently, the dates were obtained from a privilege log submitted by HEMSI in response to Plaintiff’s discovery. The Alabama Supreme Court held that discovery concerning these specifically identified events was permitted.

Relation Back of Amended Complaint Filed After the Expiration of the Statute of Limitations

Davis v. Affinity Hosp., LLC (Ex parte Affinity Hosp., LLC), 2022 Ala. LEXIS 45* (May 27, 2022)

Plaintiff filed this wrongful death action after his wife died following a ureteral surgery performed at Grandview Medical Center. Initially, Plaintiff asserted that the decedent suffered an unintended laceration during the outpatient surgery which resulted in an infection which was allegedly not timely diagnosed. Plaintiff asserted that the hospital and its employees breached the applicable standard of care by negligently performing the procedure, failing to timely diagnose the laceration, failing to emergently treat the laceration, failing to monitor for signs of an infection, as well as failing to diagnose and treat the infection.

Plaintiff’s complaint was amended on several occasions. Ultimately, after the two-year wrongful death statute of limitations had expired, Plaintiff filed his “Amended and Restated Complaint” in which he asserted that the hospital had breached the standard of care by failing to properly monitor the patient’s blood glucose levels and report the results of same to her physicians. Otherwise, Plaintiff alleged that the hospital failed to appropriately monitor, manage, and or treat Plaintiff’s blood glucose levels resulting in a fall and abdominal injury causing compartment syndrome and, ultimately, death.

The hospital filed a motion to dismiss asserting that the restated complaint was barred by the two-year statute of limitations applicable to wrongful death actions. The motion was denied, and the hospital sought mandamus review. In granting the requested relief, Alabama Supreme Court noted that Plaintiff did not simply assert a new theory of liability against the hospital or add facts that explained conduct which had previously been alleged; instead, Plaintiff changed the occurrence which allegedly caused the patient’s injuries and the purported conduct which resulted in death. Finding that the allegations involved different behavior taking place at different times the Court held that the restated complaint did not relate back to the original filing and, thus, was untimely filed.

Note that this appeal was handled by CMP attorneys, Cannon Lawley, Jeremy Gaddy, and Walter Price.

Order Requiring Change to Death Certificate Rejected

Ex parte McKinney v. Baptist Health Sys., 2022 Ala. LEXIS 38* (May 20, 2022)

In this wrongful death suit the patient sought treatment at the emergency department of Princeton Baptist Medical Center where he was diagnosed with possible pneumonia. He was discharged that same day. However, that evening he returned to Princeton where he died two days later. Dr. McKinney, a defendant in the case, completed the death certificate identifying the contributing causes of the patient’s cause of death as “Pulseless Electrical Activity” due to “Acute Myocardial Infarction.” A later autopsy revealed that the most likely cause of death was pulmonary thromboembolism, a diagnosis Dr. McKinney agreed with in her subsequent deposition.

Dr. McKinney’s counsel sought a voluntary dismissal from the lawsuit. Plaintiff’s counsel indicated that a decision on the request would be aided by Dr. McKinney’s voluntary amendment of the death certificate identifying the cause of death as pulmonary thromboembolism. After Dr. McKinney refused to change the death certificate, Plaintiff filed a motion to compel asserting a discovery issue based upon Dr. McKinney’s deposition testimony. The trial court granted the motion requiring Dr. McKinney to amend the death certificate.

The Supreme Court of Alabama granted mandamus relief finding that there had been no “failure to make discovery” permitting the trial court to compel discovery under Alabama Rule of Civil Procedure 37. In doing so, the Court noted that the death certificate only provides a rebuttable presumption of the cause of death, and, indeed, it may be excluded if necessary by the trial court. The appellate court also took note of Dr. McKinney’s argument that there may be implications before the Alabama Board of Medical Examiners for altering an official record as to the cause of death eight years after the fact purportedly in exchange for a voluntary dismissal from a lawsuit.

Failure to Timely Seek Change of Venue

Ex parte Premier Plastic Surgery, P.C., 2022 Ala. LEXIS 77* (September 2, 2022)

Premier Plastic Surgery sought change of venue from Jefferson County, Alabama to Shelby County, Alabama. In discovery, it was determined that all of the treatment provided to the patient took place in Shelby County and, at the time of the treatment, the patient resided in Shelby County. The location of residence was confirmed during Plaintiff’s deposition which took place approximately one year before Premier sought the change of venue which, actually, took place three weeks before trial. The Alabama Supreme Court held that Premier’s request for a change of venue was untimely and that the right to challenge venue had been waived.

In refusing to grant mandamus relief, the Alabama Supreme Court confirmed that language in the Alabama Medical Liability Act permitting transfer of venue at “anytime prior to the commencement of trial” of the action only applies in cases where care was provided in more than one county and, per the AMLA, in that scenario venue is then proper in the county where the patient resided at the time care was provided. In other words, the AMLA allows a transfer of venue at any time prior to trial in the event that it is subsequently learned that care was not provided in more than one county and, at that point, the venue would be proper in the only county where care was provided.