EX PARTE McCOLLOUGH, 747 So.2d 887 (Ala. 1999)

Ex parte Willie B. McCollough, as administratrix of the estate of Rochelle

S. Loftin, deceased.

(Re:  Willie B. McCollough, as administratrix of the estate of Rochelle S.

Loftin, deceased v. Dalraida Health Center, Inc., et al.).

No. 1962015.

Supreme Court of Alabama.

Decided January 8, 1999.

                      PETITION FOR WRIT OF MANDAMUS

  Appeal from (Montgomery Circuit Court, CV-96-1264).

  Tyrone C. Means, H. Lewis Gillis, Mark Englehart, and Deborah Sanders
Manasco of Thomas, Means & Gillis, P.C., Montgomery, for petitioner.

  Jeffrey W. Smith, Montgomery, for respondant Dalraida Health Center, Inc.

  Tom Dutton, Birmingham, for amicus curiae Nation Citizen' Coalition for
Nursing Home Reform, in support of the petitioner.

  John L. Quinn of Nakamura & Quinn, Brimingham, R. Marcus Givhan, and James
F. Henry of Johnston, Barton, Proctor & Powell, L.L.P., Birmingham, for
amicus curiae Alabama Nursing Home Ass'n.

  W. Stancil Starnes and Sybil Vogtle Abbot of Starnes & Atchison,
Birmingham, for amicus curiae Medical Ass'n of the State of Alabama.

  PER CURIAM.

  Willie B. McCollough, as the administratrix of the estate of
Rochelle S. Loftin, petitions for a writ of mandamus directed to
the Circuit Court of Montgomery County. Ms. McCollough asks this
Court to order the circuit court to "compel the requested discovery
pursuant to a proper construction of the Alabama Medical Liability
Act, Ala. Code 1975, § 6-5-551." Alternatively, Ms. McCollough
seeks a declaration that the portions of § 6-5-551 purporting to
restrict discovery in medical liability actions are
unconstitutional and an order compelling discovery based on that
declaration.
Page 888

  Section 6-5-551, enacted as part of the Alabama Medical
Liability Act of 1987, provides:

    "In any action for injury, damages, or wrongful
  death, whether in contract or in tort, against a health
  care provider for breach of the standard of care the
  plaintiff shall include in the complaint filed in the
  action a detailed specification and factual description
  of each act and omission alleged by plaintiff to render
  the health care provider liable to plaintiff. The
  plaintiff shall amend his complaint timely upon
  ascertainment of new or different acts or omissions upon
  which his claim is based; provided, however, that any
  such amendment must be made at least 90 days before
  trial. Plaintiff shall be prohibited from conducting
  discovery with regard to any other act or omission or
  from introducing at trial evidence of any other act or
  omission. Any complaint which fails to include such
  detailed specification and factual description of each
  act and omission shall be subject to dismissal for
  failure to state a claim upon which relief can be
  granted."

(Emphasis added.)

  Ms. McCollough's complaint alleges that the death of Ms.
Loftin, her grandmother, was caused by wrongful conduct on the part
of the defendants. The complaint names as defendants Dalraida
Health Center, Inc. ("Dalraida"), and Nina Ferguson, the
administrator of a nursing home operated by Dalraida, and it
describes a number of fictitiously named defendants. Count one
alleges:

    "Prior to December 23, 1995, Plaintiff's Decedent,
  Rochelle S. Loftin, entered into an express or implied
  contract with Defendant Dalraida Health Center whereby,
  for consideration duly paid by her or on her behalf,
  Dalraida Health Center was to provide her a place of
  residence and to provide her food and personal care. By
  the terms of such contract, Defendant Dalraida Health
  Center expressly or impliedly agreed or warranted to use
  reasonable care and diligence in providing the personal
  care of Plaintiff's Decedent, and to exercise reasonable
  care in maintaining the personal safety and general
  health and welfare of Plaintiff's Decedent. Pursuant to
  such contract, Plaintiff's Decedent was entrusted to
  Dalraida Health Center's sole custody and care.

    "On or about December 23, 1995, the named defendants
  . . . breached the terms of the foregoing warranty and/or
  contract, by willfully, wrongfully, and/or recklessly
  administering a [gastrostomy tube, or `G-Tube'] feeding
  of `Jevity' instead of administering Plaintiff's
  Decedent's prescribed G-Tube feeding of `Glucerna,' a
  specialized nutrition with fiber for patients with
  abnormal glucose tolerance, which had been ordered for
  her diabetic condition.

    "As a proximate consequence of failing to administer
  the prescribed G-Tube feeding to Plaintiff's Decedent and
  such breach of contract or warranty, Plaintiff's Decedent
  was caused to suffer an adverse reaction resulting in
  great pain and physical suffering, severe mental anguish
  and/or emotional distress, and death."
  Count two alleges that the defendants were negligent, wanton,

or reckless in the following respects:

    "a. Defendants failed to use reasonable care in
  administering the prescribed G-Tube feeding to
  Plaintiff's Decedent at Dalraida Health Center;

    ". . . .

    "c. Defendants failed to monitor and chart the
  physical condition of Plaintiff's Decedent during the
  administration of the wrong G-Tube feeding, and failed to
  correctly identify and chart the type of G-Tube feeding
  administered to Plaintiff's Decedent at Dalraida Health
  Center;

    "d. Defendants failed to report any and all adverse
  and/or life-threatening changes in the physical condition
Page 889
  of Plaintiff's Decedent, Rochelle S. Loftin, during the
  administration of the wrong G-Tube feeding to the
  Director of Nursing and/or the Assistant Director of
  Nursing, to the Plaintiff's Decedent's personal physician
  and/or to the Medical Director of Dalraida Health Center;
  and to Mrs. Loftin's sponsor, Willie B. McCollough, the
  Plaintiff in this action;

    "e. Defendants failed to screen, or improperly
  screened, and/or were otherwise negligent, wanton or
  reckless in hiring nursing care personnel at Dalraida
  Health Center;

    "f. Defendants failed to properly and adequately
  train, supervise, and monitor the performance of,
  evaluate, and/or discipline their nursing care personnel
  at Dalraida Health Center;

    "g. Defendants assigned personnel to give care to
  Plaintiff's Decedent who were not competent or who were
  unfit to provide and/or incapable of providing adequate
  nursing care at Dalraida Health Center;

    "h. Defendants understaffed or otherwise failed to
  provide sufficient nursing personnel to provide all
  necessary nursing care to Plaintiff's Decedent at
  Dalraida Health Center in conjunction with the needs of
  other residents there.

    "The foregoing acts and omissions reflect and
  proximately result from Defendants' systemic [sic]
  failure to adopt, promulgate, monitor and/or enforce
  policies and procedures at Dalraida Health Center to
  prevent or minimize the risk of such acts and omissions
  and the reasonably foreseeable harm and risk of harm
  and/or death proximately caused thereby.

    "As a direct and proximate result of such negligent,
  grossly negligent, wanton, reckless, malicious and/or
  intentional conduct, Defendants caused Plaintiff's
  Decedent to suffer severe bodily harm, including great
  pain and physical suffering and severe mental anguish
  and/or emotional distress."

(Emphasis added.)

  Count three realleges the preceding allegations and seeks
damages for the wrongful death of Ms. Loftin. Count four alleges
suppression, count five alleges fraud, and count six alleges
conspiracy; these three counts relate to the defendants'
communications, or lack thereof, with Ms. McCollough about the
cause of Ms. Loftin's death. Counts four, five, and six were
dismissed, and are not at issue here.

  Ms. McCollough filed interrogatories, notices of depositions,
and requests for production. Dalraida objected to this discovery,
and Ms. McCollough filed a motion to compel production. Ms.
McCollough argued that, to the extent § 6-5-551 purports to limit
the discovery in a medical liability action, it is
unconstitutional, and she served the attorney general with a copy
of the motion making this argument. After a hearing, the circuit
court denied the constitutional challenge and directed the parties
to attempt to resolve their discovery disputes. Dalraida produced
some documents, but continued to object that § 6-5-551 precluded
discovery of other documents and information.

  After a further hearing, the circuit court granted Dalraida's
request for a protective order as to the matters that are the
subject of the following interrogatories and requests for
production:

  "Please describe in detail any previous and
  subsequent incidents from 1990 through the present of
  which defendant is aware which occurred in substantially
  the same way or in a similar way as the incident made the
  basis of this lawsuit.

    "Please produce complete and legible copies of all
  documents pertaining to investigations relating to
  alleged abuse, mistreatment and/or neglect of resident(s)
  or to the health, safety, and/or welfare of resident(s)
  which have been initiated against you and/or which you
Page 890
  have conducted for the years 1990 to the present.

    "Please produce complete and legible copies of each
  and every letter, note, [memorandum], or other document
  and communication received by you relating to complaints
  about resident care, mistreatment or abuse by nursing
  personnel for the years 1990 through the present.

    "Please produce complete and legible copies of all
  disciplinary reports, memoranda, notes, letters or other
  documents and communications relating to physicians and
  nursing personnel working the day, evening, and night
  shifts from January 1, 1990 through December 31, 1995.

    "Please produce complete and legible copies of any
  and all employee complaints communicated to you,
  including all complaints communicated to you by
  memoranda, letter, note or any other form of document or
  communication from January 1, 1990 through December 31,
  1995.

    "Please produce complete and legible copies of all
  nursing personnel evaluations for the years 1992 through
  the present.

    "Please produce complete and legible copies of
  personnel records for all nursing personnel employed by
  you at any time during the years 1990 through the
  present, and if any nursing personnel worked at more than
  one (1) of your facilities, please give the names of the
  facilities at which he or she worked, including his or
  her dates of employment at each such facility."

  In granting a protective order as to these matters, the
circuit court relied upon Ex parte Northport Health Service, Inc.,
682 So.2d 52 (Ala. 1996). In Northport Health Service, this Court
first held void the circuit court's ruling that § 6-5-551 is
unconstitutional, for failure of the plaintiff to serve the
attorney general. Next, it held that, on the merits, the circuit
court's discovery order should be vacated. The Court noted that
the plaintiff had alleged "that employees of Northport's nursing
home were abusive to Pearl Smith while she was a resident there"
and that "[t]he discovery sought in this case, and to which
Northport objects, is essentially `pattern and practice' evidence."
682 So.2d at 55. We note that three Justices dissented.

  In contrast, the discovery sought by Ms. McCollough is not
sought as pattern-and-practice evidence, but is sought for the sake
of showing negligence, wantonness, willfulness, or breach of a
contractual duty to provide adequate care by Dalraida Health Center
in its hiring, training, staffing, etc., which negligence,
wantonness, willfulness, or breach, the plaintiff alleges,
proximately caused the death of her grandmother. The items sought
would be relevant to these allegations, and much of the information
in those items would be necessary to prove them. Ms. McCollough
alleges that the death of her grandmother was proximately caused by
the "systemic failure" of Dalraida to provide procedures to
minimize the risk of harmful acts such as those that led to Ms.
Loftin's death, and by understaffing, hiring unqualified persons,
and failing to train, supervise, and discipline them. To prove
these allegations, particularly as to wanton or willful misconduct,
Ms. McCollough would have to prove facts that gave Dalraida notice
or knowledge of the inadequacy of its procedures and its staffing.

  To the extent Ms. McCollough alleges that Dalraida's employees
were incompetent and that Dalraida knew of their incompetence, her
allegations may be analogized to a claim alleging negligent
entrustment.[fn1] In such a claim, the plaintiff must prove that there
was a negligent entrustment of a chattel (such as, perhaps, the
G-Tube?) to an incompetent, which
Page 891
negligent entrustment proximately caused injury to the plaintiff or the
plaintiff's decedent. See, e.g., Pryor v. Brown & Root USA, Inc.,
674 So.2d 45 (Ala. 1995); Matkin v. Country Skillet Poultry Co.,
514 So.2d 1356 (Ala. 1987); Dunaway v. King, 510 So.2d 543
(Ala. 1987); Wilbanks v. Brazil, 425 So.2d 1123 (Ala. 1983);
Brown v. Vanity Fair Mills, Inc., 291 Ala. 80, 277 So.2d 893
(1973). Our point is not that Ms. McCollough is proceeding, or might, after
discovery, proceed, on a theory of negligent entrustment; our point is that
the notice or knowledge of incompetence that is an element of negligent
entrustment is similar to the allegations of Dalraida's notice or
knowledge of the alleged incompetence of its staff, or of the
inadequacy of its own safeguards, which allegations form an element
of some of Ms. McCollough's claims.

  Indeed, the Court of Civil Appeals has addressed an allegation
of negligent hiring outside the context of negligent entrustment.
In Nash v. Segars, 682 So.2d 1364 (Ala.Civ.App. 1996), Brooks,
an employee of John Segars Air Control Company, burglarized and
burned the residence of the Nashes three days after having visited
their residence in the course of his employment with Segars. The
Nashes alleged that Segars was negligent in hiring Brooks, because
he had been convicted in the year before Segars hired him of
burglary, car theft, and theft of a gun. The Court of Civil
Appeals affirmed a summary judgment for Segars, holding that Brooks
had not been acting within the line and scope of his employment
when he committed the burglary and arson.

    "In order to prevail in a negligent hiring case, a
  plaintiff must show that an employee was acting within
  the line and scope of his employment. Brown v. Vanity
  Fair Mills, Inc., [supra] . . . ."

682 So.2d at 1365. Thus, although the Nashes had not presented a
meritorious claim, the Court of Civil Appeals took for granted that
such a claim could lie if the employee was acting in the line and
scope of his employment.

  In Brown v. Vanity Fair Mills, supra, the Court stated:

  "While it has been held that an employer has a duty to
  exercise reasonable care for the safety of his customers,
  patrons, or other invitees, and in fulfilling this duty
  he must use due care to avoid the selection or retention
  of an employee . . . he knows or should know is a person
  unworthy, by habits, temperament, or nature, to deal with
  the persons invited to the premises by the employer, we
  do not think that rule is applicable here."

291 Ala. at 82, 277 So.2d at 895, citing C. S. Patrinelis,
Annotation, Assault by Servant, 34 A.L.R.2d 372, 390 (1954). The
Court did not clearly adopt this rule, and certainly not outside
the context of an assault by an employee on a patron or other
invitee, but the principle stated there is sound and could be
applicable to Ms. McCollough's allegations that Dalraida was
negligent or wanton in hiring, training, scheduling, supervising,
and disciplining its employees, and through its negligence or
wantonness in that regard proximately contributed to Ms. Loftin's
injuries and death.

  These allegations of wrongful conduct would require proof that
Dalraida had notice or knowledge of the alleged increased risk of
harm due to its alleged "systemic failure" to provide for adequate
staffing and other safeguards. The degree of culpability of
Dalraida's conduct would be directly related to the number of
similar incidents, because a large number of similar incidents that
could be traced to the alleged "systemic failure" would tend to
show wanton or even willful disregard for the safety of the persons
entrusted to Dalraida's care. Thus, the requested discovery is
directly relevant to the wrongs alleged in Ms. McCollough's
complaint.

  Ex parte Northport Health Service, supra, is distinguishable
on the ground that the argument in that case did not present a view
of the complaint as alleging negligence more broadly than in the
actual
Page 892
events leading to the injuries at issue; the theory on which
discovery was sought was that "pattern and practice" evidence would
be discoverable regarding other acts as to other residents:

  "Sanders sought discovery of personnel documents,
  including disciplinary records and evaluations, and
  documents relating to `other acts' evidence,
  specifically, `evidence of acts of abuse, mistreatment or
  neglect of residents in the nursing home facilities other
  than those that resulted in the severe bruising,
  hospitalization and death of Pearl Smith."

682 So.2d at 53.

  Similarly, the argument that is made here was not made in Ex
parte Golden, 628 So.2d 496 (Ala. 1993). There, the question was
whether Golden's fraud allegations came within the ambit of the
Medical Liability Act; the plaintiff did not argue that the
pattern-and-practice evidence would be discoverable even if the
complaint was governed by that Act. "The parties agree that if the
Alabama Medical Liability Act applies, the trial court correctly
disallowed discovery of any other alleged instances of fraudulent
behavior by [the defendant doctor]." 628 So.2d at 497. The
plaintiff in Golden, therefore, made no argument that, if the
Medical Liability Act applied, § 6-5-551 nevertheless did not apply
to the discovery at issue there.

  We note that Montgomery Health Care Facility, Inc. v. Ballard,
565 So.2d 221 (Ala. 1990), is not dispositive of the issues here.
In Ballard, this Court held that the circuit court had not erred in
admitting into evidence reports compiled by the Alabama Department
of Public Health. The facts in Ballard occurred before the
effective date of § 6-5-551, which, in addition to requiring
specific pleading and limiting discovery, prohibits the plaintiff
"from introducing at trial evidence of any other act or omission."
Thus, Ballard is distinguishable because it was not decided under
§ 6-5-551. Furthermore, Ballard is distinguishable because of the
nature of the evidence at issue there. In a motion to supplement
the record, McCollough has provided this Court with copies of nine
documents entitled "Statement of Deficiencies and Plan of
Correction" that were issued to Dalraida Health Center by either
the United States Department of Health and Human Services or the
Alabama Department of Public Health. These may well be the kind of
reports that were admitted in Ballard. However, these are
government-generated documents; the requests for production at
issue here ask principally for internal documents. Even if the
Medicare and Medicaid laws preempt § 6-5-551 as to these public
records, the discovery requests at issue here would not, on the
whole, be affected.

  Nevertheless, Ballard is authority for our decision here in at
least one respect. The Court there held, citing Flint City Nursing
Home, Inc. v. Depreast, 406 So.2d 356 (Ala. 1981), that "evidence
of notice to a defendant of an alleged dangerous condition or
defect can be relevant to the issue of negligence and is admissible
if the alleged defect proximately caused or contributed to the
injury involved." Ballard, 565 So.2d at 223. Ballard and
Depreast therefore support the theory of liability alleged in Ms.
McCollough's complaint.

  For the reasons stated above, Ms. McCollough's discovery
requests are pertinent to the allegation in her complaint of
wrongful conduct proximately causing or contributing to Ms.
Loftin's death.[fn2] Because we hold that the matters are discoverable
within the terms of § 6-5-551, we
Page 893
pretermit consideration of the argument that § 6-5-551 is
unconstitutional.

  WRIT GRANTED.

  Hooper, C.J., and Almon, Shores, Kennedy, and Cook, JJ.,
concur.

  Houston, J., concurs specially.

  Maddox, See, and Lyons, JJ., dissent.

[fn1] In this discussion, we express no opinion as to how the
Medical Liability Act would govern Ms. McCollough's attempt to
prove a breach of the standard of care. We discuss the principles
of negligent hiring and negligent entrustment simply as
illustrating the plaintiff's theory of Dalraida's wrongful conduct
and why the discovery sought is pertinent thereto.

[fn2] We note that several of the discovery requests seek records
"from 1990 through the present." The parties have not briefed the
question whether such discovery should be allowed only for the
period up until the time of Ms. Loftin's death, as showing notice
and knowledge on the part of Dalraida up to that point, or until
some time thereafter, as providing circumstantial evidence of
Dalraida's overall or "systemic" negligent, wanton, or willful
failure to provide due care. Therefore, we leave that question for
further proceedings in the circuit court.

  HOUSTON, Justice (concurring specially).

  While I join the per curiam opinion, I concur with that
portion of Justice Lyons's dissent that addresses the
constitutionality of Ala. Code 1975, § 6-5-551. In my opinion,
§ 6-5-551 is not unconstitutional for any of the reasons asserted
by McCullough.

  LYONS, Justice (dissenting).

  In actions against a health-care provider, the legislature has
prohibited discovery of evidence regarding acts or omissions other
than those alleged in the complaint, and it has required that the
plaintiff's complaint be substantiated by "a detailed specification
and factual description of each act and omission alleged by
plaintiff to render the health care provider liable to plaintiff."
§ 6-5-551, Ala. Code 1975. The complaint here contains general
allegations of wrongdoing on the part of Dalraida in connection
with its screening, training, and assigning personnel, as well as
its understaffing of the facility or otherwise having caused a
"systemic" failure to enforce policies that minimize the risk of
wrongdoing. If these allegations rose to the level of "a detailed
specification and factual description of each act and omission
alleged by plaintiff to render the health care provider liable to
plaintiff," then the discovery at issue would be authorized by §
6-5-551. In Mikkelsen v. Salama, 619 So.2d 1382 (Ala. 1993), this
Court held that § 6-5-551 required that a defendant be given fair
notice of the allegedly negligent acts and that that notice
identify the time and place those acts occurred and the resulting
harm. McCullough's allegations are far less specific than those
approved in Mikkelsen, and, hence, are beyond the scope of
discovery authorized by the statute.

  Because I conclude that the discovery sought by McCullough is
prohibited by the statute, I also address the issue regarding the
constitutionality of the statute. I find no violation of Art. III,
§ 43, Ala. Const. of 1901 (separation of powers), because the
Constitution allows the legislature to enact rules governing
procedure. § 6.11, Amend. No. 328, Ala. Const. of 1901. Because
I fine no equal-protection clause in the Alabama Constitution, I
will refrain from making an equal-protection analysis. See Smith
v. Schulte, 671 So.2d 1334, 1348 (Ala. 1995) (Houston, J.,
dissenting), cert. denied, 517 U.S. 1220 (1996). A plaintiff's
right to a remedy is secured by Art. I, § 13, Ala. Const. of 1901.
Nevertheless, I am persuaded that the authority of the Court to act
in regard to alleged violations of § 13 is limited to instances in
which the legislature takes away a remedy after a cause of action
has accrued and that it does not extend to instances in which, as
here, the legislature modifies or limits a remedy. Mayo v.
Rouselle Corp., 375 So.2d 449 (Ala. 1979). Finally, I find no
due-process violation. Section 6-5-551 affords a proceeding before
a tribunal, with notice and an opportunity to be heard. I decline
to indulge in a substantive-due-process analysis that would lead to
striking down a statute in a situation where I might disagree with
the result that would be reached upon application of the statute.
Our inquiry should be limited to questions of legislative power and
should not include questions of expediency or wisdom. Alabama
State Federation of Labor v. McAdory, 246 Ala. 1, 9-10,
18 So.2d 810 (1944), cert. dismissed, 325 U.S. 450 (1945).

  Maddox and See, JJ., concur.