Rule 37 Order Compelling Defendant Physician to Change Death Certificate Vacated


Ex parte McKinney, [Ms. 1200621, May 20, 2022] __ So. 3d __ (Ala. 2022). The Court (Shaw, J.; Parker, C.J., and Bolin, Wise, Bryan, Sellers, Mendheim, Stewart, and Mitchell, JJ., concur) issues a writ of mandamus to the Jefferson Circuit Court to vacate its order compelling Dahlia McKinney, M.D. (“McKinney”), a defendant in a wrongful-death/medical-negligence action to change the decedent’s cause of death on a registered certificate McKinney prepared. In her deposition, McKinney testified the most likely cause of death was pulmonary thromboembolism rather than acute myocardial infarction listed on the death certificate. Ms. *7.

The Court “concludes that, under the specific facts of this case, the trial court’s order directing Dr. McKinney to amend the death certificate was not authorized by our discovery rules, was not required by law, was not proven to be necessary, and was not an order the trial court had discretion to enter.” Ms. **11-12. The Court explains the challenged order was not issued to compel action in response to Dr. McKinney’s “failure to make discovery.” Ms. *13.

The order was also unnecessary because “Alabama law provides that a cause of death indicated on a death certificate is not determinative as to the ultimate cause of death” and is instead simply prima facie evidence of the cause of death. Ms. **14-15.

On an important point involving mandamus review of discovery orders, the Court reiterates that “within the period established by a trial court order for producing compelled discovery, a ‘party dissatisfied with the trial court’s ruling on a motion to compel discovery must first make a timely motion for a protective order, so as to create a record to support the essential allegation that the petitioner has no other adequate remedy.’ Ex parte Horton Homes, Inc., 774 So. 2d 536, 540 (Ala. 2000).” Ms. *19. The Horton Homes rule was inapplicable here because “the order in this case does not compel discovery.” Ibid.

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