Discovery of “Other Acts” in Medical Negligence Action Alleging Negligent Hiring, Training and/or Retention

Ex parte Huntsville Emer. Med. Svcs., Inc., et al., [Ms. 1210129, Sep. 9, 2022] __ So. 3d __ (Ala. 2022). The Court (Parker, C.J., and Bolin, Shaw, Wise, Bryan, Mendheim, Stewart, and Mitchell, JJ., concur; Sellers, J., dissents) denies in part and grants in part a petition for writ of mandamus sought by Huntsville Emergency Medical Services, Inc. (“HEMSI”), and HEMSI employees challenging the Limestone Circuit Court’s discovery ruling in a medical negligence wrongful death action.

The HEMSI defendants transported Robert Owen from Huntsville hospital to UAB Medical Center via advanced-life-support ambulance staffed by driver Jacob Steele, an EMT, and paramedic Charles Hui. During the transport, Steele repeatedly strayed from his lane of travel and failed to remain alert at the wheel. Ms. *4. When Steele stopped the ambulance on the shoulder of the road, Hui was instructed in a phone call with a supervisor to switch places with Steele and continue the transport. Instead of monitoring Robert, Steele put on headphones and went to sleep. When Robert called for help, Steele did not awaken and Hui had to stop the ambulance to administer nitroglycerine to Robert. When the ambulance reached Birmingham, it took Hui 15 minutes to find UAB Hospital. Ibid.

Gloria Owen, as personal representative of Robert’s estate, filed a wrongful death suit against HEMSI, Steele, Hui and other HEMSI employees alleging that Robert’s problematic transport had “‘caused him unnecessary stress, worry, concern, anxiety, and/or a delay in treatment,’ leading to further heart damage and his eventual death.” Ms. *2. “Gloria’s first three counts (‘the driving claims’) made allegations about Steele’s reckless driving and HEMSI’s wrongful hiring, training, supervision, and retention of him as a driver, and its wrongful entrustment of the ambulance to him, while the latter two counts (‘the medical claims’) alleged that the HEMSI defendants had breached the relevant standard of care in providing medical services to Robert.” Ms. **5-6.

Defendants invoked the discovery privilege in § 6-5-551 and sought to prohibit discovery of Steele’s past acts and employment record. The trial court held that the driving claims were not subject to the AMLA because, “those claims ‘concern[ed] Steele’s basic fitness as a driver of a motor vehicle” and did not relate to the provision of medical services. Thus, the trial court concluded, ‘[§] 6-5-551 presents no obstacle to [the requested] discovery.’ In the alternative, the [trial] court held that – regardless of whether the driving claims were subject to the AMLA – Gloria was entitled to the requested discovery based solely on the medical claims because she had ‘identifie[d] Steele as an incompetent and unfit employee, and [her] discovery requests for prior conduct are limited to those [acts] committed by him.’” Ms. *8.

Because it was “undisputed that Robert’s physicians and Huntsville Hospital ‘made use’ of HEMSI as part of their delivery of health-care services to Robert,” [and] “any injury Robert suffered due to actions or omissions of the HEMSI defendants that were reasonably related to that ‘use’ was incurred during the provision of medical services,” Ms. **14-15, the Court concludes the AMLA “applies to the driving claims asserted by Gloria.” Ms. *15.

The Court explains that when as here, an “action against a health-care provider contains allegations of negligent or wanton hiring, training, supervision, or retention, evidence of prior acts or omissions by either the health-care provider or the employee – although not directly related to the provision of health care to the injured party – may otherwise be relevant to prove the claims. Examples of such evidence would include evidence showing a health-care provider’s knowledge of misconduct by an employee that occurred before the employee was hired or evidence of a health-care provider’s knowledge of conduct by an employee after hiring that should have demonstrated to the health-care provider that the employee was incompetent.” Ms. *17.

Citing Ex parte Ridgeview Health Care Center, Inc., 786 So. 2d 1112, 1117 (Ala. 2000), the Court reiterates that even where the complaint alleges negligent hiring, supervision, or retention “discovery is permissible as to only those acts or omissions that (1) are specifically and factually described in the plaintiff’s complaint and (2) are relevant to the plaintiff’s claim.” Ms. *20. The Court holds

To be sure, general allegations about an employee’s misconduct, drug use, or mental and emotional problems do not meet the level of specificity required by § 6-5-551 to open the door to discovery about that employee’s record. But the details in Gloria’s complaint go beyond general allegations. She lists specific dates on which Steele is alleged to have had “incidents” that occurred in the line and scope of his employment and that allegedly demonstrated that he was unfit for his job. And she has also alleged specific facts indicating that HEMSI had knowledge of his problematic record. These are sufficiently pleaded allegations of “acts or omissions” relevant to Gloria’s claims of negligent or wanton hiring, training, supervision, and retention to satisfy § 6-5-551 and to permit discovery into the specifically alleged incidents. We recognize that those incidents may relate to the provision of care to other patients and that the discovery and admissibility of evidence of acts or omissions related to the care of other patients is generally disallowed under § 6-5-551. See Ex parte Tombigbee Healthcare Auth., 260 So. 3d 1, 16 (Ala. 2017) (Shaw, J., dissenting). But they could also be evidence of Steele’s alleged “incompetency,” and HEMSI’s knowledge of them, see Thompson [v. Havard, 285 Ala. 718, 235 So. 2d 853 (1970)] could be the proof necessary “to render the health care provider liable,” § 6-5-551, for the negligent or wanton hiring, training, supervision, or retention of Steele. Thus, Gloria is not restricted from discovering HEMSI records about these incidents. But to the extent that the trial court’s October 2021 order permits discovery of other information in Steele’s employee file regarding acts or omissions that are not specifically described in Gloria’s complaint – or of information on Steele’s mobile phone unrelated to Robert’s transport or the other specifically described acts and omissions – that order is too broad and the HEMSI defendants are entitled to an order limiting the scope of discovery to comply with § 6-5-551.

Ms. **22-23.

The Court surmised that the details regarding Steele’s prior acts alleged in Gloria’s amended complaint were likely gleaned from HEMSI’s privilege log. Noting that HEMSI did not question use of information in a privilege log in this manner, the Court left that issue for another day. Ms. *22, n.4.

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