Ex parte Tombigbee Healthcare Authority, [Ms. 1160706, Dec. 15, 2017] __ So. 3d __ (Ala. 2017). This decision by Justice Sellers (Stuart, C.J., and Bolin, Parker, Main, Wise, and Bryan, JJ., concur; Murdock, J., concurs in part and concurs in the result; Shaw, J., dissents) denies a petition for writ of mandamus sought by Tombigbee Healthcare Authority challenging an order of the Marengo Circuit Court compelling the hospital to respond to certain discovery requests.
Four patients of the hospital filed this joint action alleging that a hospital employee, radiology technician Taylor, sexually assaulted them while they were patients in the hospital. Plaintiffs allege the hospital was negligent and/or wanton in its hiring, training, supervision, and retention of Taylor. Ms. *2. The hospital contends that discovery sought by the plaintiffs of incidents involving sexual misconduct by Taylor and the hospital’s investigation into allegations of sexual assault were exempt from discovery pursuant to § 6-5-551, Ala. Code 1975 and § 22-21-8 (b), Ala. Code 1975.
The Court first concluded that
the plaintiffs’ claim against the hospital alleging that it was negligent in handling or wanton in its hiring, training, supervising, and retaining of Taylor involves a breach of an applicable standard of care of the health-care providers and is, therefore, governed by the AMLA.
Ms. *10. The Court rejected the hospital’s assertion that the circuit court exceeded its discretion by disregarding the hospital’s discovery privilege under § 6-5-551, holding
[b]ecause the plaintiffs have consolidated their claims, it would be impractical, if not impossible, to prevent each plaintiff from discovering information concerning the alleged acts by Taylor against the other plaintiffs. Therefore, contrary to the hospital’s assertion, § 6-5-551 does not prohibit each plaintiff from discovering information pertaining to the claims of the other plaintiffs.
Ms. *13.
In rejecting the hospital’s assertion that § 22-21-8 protected the documents at issue from discovery, the Court noted that “‘the party asserting the privilege under § 22-21-8 has the burden of proving the existence of the privilege and the prejudicial effect of disclosing the information.’ Ms. *14, quoting Ex parte Fairfield Nursing, 22 So. 3d [445,] 448 [(Ala. 2009)].”
In resolving the issue under § 22-21-8, the Court quoted at length the affidavit submitted by the hospital from its director of professional standards who averred, inter alia,
All documents and other materials created during the course of quality assurance investigation are not kept in the ordinary course of business, nor do they become a part of the patient’s medical chart.
Quality assurance documents and other materials are, obviously, created for quality assurance purposes. The creation of these documents and materials are needed to guarantee quality of care for all patients.
Ms. *16. The Court distinguished Ex parte Qureshi, 768 So. 2d 374 (Ala. 2000), in which the Court had issued mandamus vacating an order requiring production of a physician’s credentialing file. The Court held “[t]he instant case does not involve a physician’s application for staff privileges, which, as explained in Qureshi, are kept confidential to ensure that physicians applying for staff privileges provide ‘complete and accurate information about their qualifications.’” Ms. *18. The Court held that “the hospital has failed to demonstrate that the quality assurance privilege applies to claims arising out of allegations of sexual acts that are wholly unrelated to medical treatment or that investigations related to allegations of sexual assault are undertaken to improve the quality of patient care.” Ms. *18.