I keep a close eye on healthcare law throughout the year, but late December and early January always seem to provide a little time for reflection. Looking back on the year’s events provides a sense of context and perspective often difficult to get during other times of the year. To that end, the following are notable Alabama Appellate Court decisions for medical malpractice and healthcare lawyers:
Amendment to the Alabama Medical Liability Act
Before diving into appellate decisions, there is one legislative change of note. Effective August 1, 2023, the term “health care provider” under the Alabama Medical Liability Act (AMLA) includes emergency medical services personnel and any emergency medical provider service. This amendment has almost no practical effect in medical malpractice actions in Alabama. Although EMS providers were not specifically included as a “health care provider” covered by the AMLA, I can recall only one case where the application of AMLA was questioned in connection with an EMS provider: Ex parte Huntsville Emergency Medical Services, Inc. Steele, Calce, Hui and Nunley (Owen v. Huntsville Emergency Medical Services, Inc., et al.), 2022 Ala. LEXIS 85; 2022 WL 4115311. However, that case turned on whether the EMS provider was actually providing medical care at the time of the alleged wrongful acts, not whether an EMS provider was a “health care provider” under AMLA.
Are Federal Court Pleading Standards Coming to an Alabama State Court Near You?
Under the Alabama Medical Liability Act, a plaintiff’s complaint must provide “detailed specification and factual description of each act and omission alleged by plaintiff to render the health care provider liable to plaintiff and shall include when feasible and ascertainable the date, time, and place of the act or acts.” Ala. Code § 6-5-551. Although medical malpractice defendants already enjoy a heightened pleading standard, a recent case may be the beginning of shift towards applying the well-known Twombly/Iqbal heightened pleading standard in federal court to Alabama state court cases, including medical malpractice actions. In Ula Ann Bell et al v. Pennymac Loan Services, LLC, (Shelby County Circuit Court; 58-CV-2019-900090) the defendant asked the trial court to apply the federal court Twombly/Iqbal pleading standard in a motion to dismiss in state court. The trial court dismissed the plaintiff’s claims and the plaintiff appealed. Our Supreme Court invited both the plaintiff lawyer trade group and defense lawyer trade group to submit amicus briefs on the issue, but the parties settled the case and the appealed was dismissed in April, 2023. In its brief in support of motion to dismiss, the defendant argued:
It is well-settled that “[f]ederal cases construing the Federal Rules of Civil Procedure are persuasive authority in construing the Alabama Rules of Civil Procedure, which were patterned after the Federal Rules of Civil Procedure.” Hilb, Rogal & Hamilton Co. v. Beiersdoerfer, 989 So. 2d 1045, 1056 n.3 (Ala. 2007). Rule 8 and Rule 12(b)(6) are substantially the same in the Alabama Rules of Civil Procedure as the corresponding Federal Rules of Civil Procedure. Because the Supreme Court has abrogated and overruled the Conley interpretation in favor of Iqbal and Twombly, this Court should apply the same standard. Plaintiffs cannot prove they are plausibly entitled to relief. Consequently, this Court should dismiss Plaintiffs’ claims.
Defendants will almost certainly raise this issue in 2024; and perhaps this time around our appellate courts will have an opportunity to address the issue. If the Alabama Supreme Court applies the Twombly/Iqbal standard, it is unclear how that standard would affect pleading requirements in medical liability actions under AMLA.
Lessons on Challenging Venue in Alabama Medical Liability Act Cases
A pain management doctor obtained a patient’s mental health records even though the patient refused to consent to release of the records. The patient filed suit in Jefferson County claiming breach of contract, breach of fiduciary duty, fraud, invasion of privacy, the tort of outrage, and civil conspiracy. The patient did not assert a claim under the Alabama Medical Liability Act. The doctor filed a motion to change venue arguing AMLA applied to the patient’s claims and AMLA’s venue provision required the case be transferred to Madison County. The trial court denied the motion and the doctor filed a petition for writ of mandamus. The Alabama Supreme Court denied the writ.
The Court first noted AMLA applies to claims (1) against a health-care provider (2) for “medical injury” (3) based on a breach of the standard of care. But, before considering whether the doctor had a therapeutic or medical reason for obtaining the patient’s records, the Court examined the procedural standard it must apply when considering the question. A motion challenging venue is analogous to a motion challenging personal jurisdiction. In both postures, generally, the only “facts” before the trial court are the allegations of the complaint and the averments of any affidavits filed with or in response to the motion. In viewing those facts, the court must construe all reasonable inferences in favor of the plaintiff. In challenging venue, the doctor could argue: 1) no reasonable inference could be drawn that the doctor had no medical reason for obtaining the psychological records or 2) the doctor could file an affidavit supporting some medical reason for the doctor obtaining the records. Here, the doctor did neither; he simply relied on allegations in the complaint.
Compelling Arbitration in Nursing Home Cases
In Alabama Somerby, LLC v. L.D., (2023 Ala. LEXIS 48; 2023 WL 3401877; Appeal from Jefferson County Circuit Court), the daughter of a nursing home patient executed an arbitration agreement on behalf of the patient. In doing so, the daughter identified herself as the patient’s legal representative and provided powers of attorney documents signed by the patient. The patient later filed suit against the nursing home. The nursing home filed a motion to compel arbitration. The patient argued she was not competent on the date the arbitration agreement was signed by the daughter. The trial court denied the motion to compel arbitration. The Alabama Supreme Court reversed the trial court’s decision not to compel arbitration. In a well-written opinion addressing express and apparent authority for an agent to act for a principal, the Court held the daughter had apparent authority to enter the agreement and the patient had not demonstrated her lack of capacity to grant authority to the agent.
Is ERISA Preempted When an Insurance Company Engages in Medical Decision-Making?
Fleming went to an emergency room; during the visit a doctor recommended he undergo a colectomy. Ghee v. USAble Mutual Insurance Company, 2023 Ala. LEXIS 34; 2022 WL 2720996 Appeal from Calhoun County Circuit Court. Blue Advantage, the claims administrator for Fleming’s ERISA health insurance plan, denied coverage for the surgery. Blue Advantage told him to return to the emergency room and attempt to secure the surgery on an emergency basis. After several unsuccessful trips to the emergency room, Fleming died from septic shock as a result of his condition.
Ghee, the personal representative of Fleming’s estate, filed a wrongful death action against Blue Advantage and other defendants. Blue Advantage filed a motion to dismiss arguing the claims were preempted by ERISA. The trial court granted the motion. Ghee appealed. Citing Hendrix v. United Healthcare Ins. Co. of the River Valley, 327 So.3d 191 (Ala. 2020), the Alabama Supreme Court held Blue Advantage’s denial of Flemings’ surgery was preempted by ERISA and the trial court’s dismissal of those claims was due to be affirmed.
Ghee also argued Blue Advantage’s suggestion that Fleming return to the emergency room to obtain the surgery on an emergency basis, was a medical decision outside Blue Advantage’s role as administrator. The Alabama Supreme Court reversed the trial court’s dismissal of that claim stating“[g]iven the posture of this case, it is not clear whether Blue Advantage was acting in the course of plan administration when it advised Fleming.” The Court cited Justice Shaw’s special concurrence in Hendrix where he opined that a claim against an insurance company alleging assumption of medical care may not be preempted under ERISA.
M. Jansen Voss has developed a diverse defense litigation and appellate practice in both state and federal courts in Alabama and Mississippi. Jansen represents doctors, nurses, pharmacists, and other healthcare professionals in medical malpractice lawsuits. He handles matters before professional licensing boards – including the Alabama Board of Medical Examiners, Alabama Board of Nursing, Alabama Board of Pharmacy, and the Alabama Board of Examiners in Counseling. Jansen has represented a number of orthopedic surgeons, neurosurgeons, ophthalmologists, psychiatrists, psychologists, and correctional medical professionals.
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