Ex parte Affinity Hospital, LLC, d/b/a Grandview Medical Center PETITION FOR WRIT OF MANDAMUS (In re: Mary Louise Dinkins, as personal representative of the Estate of Mattie M. Patterson v. Affinity Hospital, LLC, d/b/a Grandview Medical Center) (Montgomery Circuit Court: CV-23-900984).

Rel: September 27, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts,
300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other
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SUPREME COURT OF ALABAMA
SPECIAL TERM, 2024

_________________________

SC-2024-0542
_________________________

Ex parte Affinity Hospital, LLC, d/b/a Grandview Medical
Center

PETITION FOR WRIT OF MANDAMUS

(In re: Mary Louise Dinkins, as personal representative of the
Estate of Mattie M. Patterson, deceased

v.

Affinity Hospital, LLC, d/b/a Grandview Medical Center et al.)

(Montgomery Circuit Court: CV-23-900984)

SELLERS, Justice.
SC-2024-0542

Affinity Hospital, LLC, d/b/a/ Grandview Medical Center

("Grandview"), petitions this Court for a writ of mandamus directing the

Montgomery Circuit Court ("the trial court") to vacate its order

compelling Grandview to respond to discovery requests that it claims

seek information or documents that are statutorily privileged and

requiring it to produce a privilege log in accordance with Rule 26(b)(6)(A),

Ala. R. Civ. P. Grandview further requests that this Court direct the trial

court to grant its motion for a protective order. We deny the petition.

I. Facts

On July 20, 2023, Mary Louise Dinkins ("the plaintiff"), the

personal representative of the estate of Mattie M. Patterson, deceased,

commenced an action against, among others, Grandview, alleging

wrongful death and medical malpractice relating to the care that

Patterson received while she was a patient of Grandview. Along with the

complaint, the plaintiff requested production of documents and answers

to interrogatories. Grandview objected to certain of the discovery

requests, contending that the information or documents requested were

confidential and, thus, privileged from discovery under Ala. Code 1975, §

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22-21-8, § 6-5-333, and § 34-24-58 ("the quality-assurance statutes").1 In

support of its position that the information or documents requested were

statutorily privileged, Grandview offered the affidavit of its "quality

manager," who stated generally that, "to the extent" the information

sought "exists," it would have been obtained only "in association with the

performance of [Grandview's] quality assurance functions and activities."

The plaintiff ultimately moved the trial court to compel Grandview to

respond to the discovery requests and to produce a privilege log in

accordance with Rule 26(b)(6)(A), identifying with sufficient detail all

1Although Grandview cites three statutes, it appears to rely
primarily, if not entirely, on § 22-21-8, Ala. Code 1975, referred to as
Alabama's peer-review statute, which expressly applies to "quality
assurance" materials. Section 22-21-8(b) provides, in relevant part, that

"[a]ll accreditation, quality assurance credentialling and
similar materials shall be held in confidence and shall not be
subject to discovery or introduction in evidence in any civil
action against a health care professional … arising out of
matters which are the subject of evaluation and review for
accreditation, quality assurance and similar functions,
purposes, or activities."

Section 6-5-333, Ala. Code 1975, declares, in relevant part, that various
types of information furnished to or generated by a "committee," as
defined in that section, are privileged and not available for discovery.
Section 34-24-58, Ala. Code 1975, provides a privilege to committees of
physicians or surgeons under certain circumstances.

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information and documents being withheld under a claim of statutory

privilege. Following a hearing, the trial court entered an order granting

in part and denying in part the plaintiff's motion to compel. The trial

court specifically ordered Grandview to respond to certain of the

discovery requests and to produce a privilege log regarding any

information or documents being withheld from production under a claim

of privilege. Grandview filed a motion for a protective order, which the

trial court denied. This mandamus petition followed.

II. Standard of Review

" 'Mandamus is an extraordinary remedy and
will be granted only when there is "(1) a clear legal
right in the petitioner to the order sought, (2) an
imperative duty upon the respondent to perform,
accompanied by a refusal to do so, (3) the lack of
another adequate remedy, and (4) properly
invoked jurisdiction of the court." Ex parte Alfab,
Inc., 586 So. 2d 889, 891 (Ala. 1991). In Ex parte
Ocwen Federal Bank, FSB, 872 So. 2d 810 (Ala.
2003), this Court announced that it would no
longer review discovery orders pursuant to
extraordinary writs. However, we did identify four
circumstances in which a discovery order may be
reviewed by a petition for a writ of mandamus.
Such circumstances arise (a) when a privilege is
disregarded, see Ex parte Miltope Corp., 823 So.
2d 640, 644-45 (Ala. 2001) .... The burden rests on
the petitioner to demonstrate that its petition

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presents such an exceptional case -- that is, one in
which an appeal is not an adequate remedy. See
Ex parte Consolidated Publ'g Co., 601 So. 2d 423,
426 (Ala. 1992).'

"Ex parte Dillard Dep't Stores, Inc., 879 So. 2d 1134, 1136-37
(Ala. 2003)."

Ex parte Fairfield Nursing & Rehab. Ctr., L.L.C., 22 So. 3d 445, 447 (Ala.

2009).

III. Discussion

A. Privilege-Log Argument

Grandview argues that the trial court exceeded its discretion in

ordering it to produce a privilege log regarding any information or

documents being withheld under a claim of statutory privilege because,

it says, by enacting the quality-assurance statutes, the legislature has

carved out an exception to the privilege-log requirement of Rule 26. Rule

26(b)(1) allows "[p]arties [to] obtain discovery regarding any matter, not

privileged, which is … relevant to the subject matter involved in the

pending action" and which is "reasonably calculated to lead to the

discovery of admissible evidence." (Emphasis added.) The term

"privileged" as used in Rule 26(b)(1) refers to privileges " 'as that term is

understood in the law of evidence.' " Ex parte Alfa Ins. Corp., 284 So. 3d

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891, 903 (Ala. 2019) (quoting United States v. Reynolds, 345 U.S. 1, 6

(1953)). Rule 26(b)(6)(A), concerning privilege logs, provides, in relevant

part:

"When a party withholds information otherwise discoverable
under these rules on a claim that it is privileged or subject to
protection as trial-preparation materials, the claim shall be
made expressly and, upon written request by any other party,
shall be supported by a description of the nature of the
documents, communications, or things not produced sufficient
to enable the demanding party to contest the claim."

According to Grandview, the privilege-log requirement of Rule 26

was designed to apply only to evidentiary privileges that, it says, unlike

statutory privileges, can be waived. Grandview characterizes quality-

assurance materials as being absolutely barred by the quality-assurance

statutes; thus, it asserts that the plaintiff is precluded from seeking

discovery of any quality-assurance materials either directly or

"surreptitiously" under the guise of requiring a privilege log. In fact,

Grandview claims that the quality-assurance statutes preclude it from

disclosing whether or not the materials sought even exist.

In light of the policy behind the quality-assurance statutes, it is

clear that the legislature intended that quality-assurance materials be

exempt from Rule 26(b)(1)'s broad scope of discovery. See Ex parte

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Anderson, 789 So. 2d 190, 202 (Ala. 2000) (plurality opinion) ("[W]e

remain mindful of the intent of the legislature when it enacted these

[quality-assurance] statutes: to encourage meaningful peer review, with

the goal of providing a better, more efficient, medical system for the

people of this State."). However, Grandview's argument that the

legislature, by enacting the quality-assurance statutes, completely

carved out and totally exempted quality-assurance materials from Rule

26's field of operation is without merit. Grandview makes the blanket

assertion that a statutory privilege applies without any judicial

oversight, intervention, or review. But that is not the case. See, e.g.,

United States v. Reynolds, 345 U.S. at 9-10 ("Judicial control over the

evidence in a case cannot be abdicated to the caprice of executive

officers."). Moreover, such a view would eliminate trial courts from being

the gatekeepers of admissible evidence and could permit, if not

encourage, a health-care provider to require that all complaints, reports

of incidents of complications, or other incident reports of any kind to be

created for a quality-assurance committee and thus become quality-

assurance materials subject to a claim of statutory privilege. In any

event, the law in this State is clear that the determination regarding

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whether specific materials are privileged is a factual question. See Ex

parte Estate of Elliott, 272 So. 3d 1021 (Ala. 2018).

Privilege logs are routinely produced with regard to information or

documents being withheld under a claim of statutory privilege. See, e.g.,

Ex parte Huntsville Emergency Med. Servs., Inc., 372 So. 3d 538 (Ala.

2022) (noting that certain defendants had filed and served privilege logs

identifying the information that they had withheld as privileged under §

6-5-551, Ala. Code 1975, which is a part of the Alabama Medical Liability

Act), and Ex parte Mobile Infirmary Ass'n, 278 So. 3d 1195, 1200 (Ala.

2018) (indicating that the trial court had ordered the defendant to

produce a privilege log for all documents withheld from production as

privileged under § 22-21-8). In fact, in Ex parte Estate of Elliott, a case

involving § 22-21-8, this Court held that a trial court had exceeded its

discretion by denying a plaintiff's motion to compel without first

requiring the production of a privilege log describing the documents being

withheld. This Court explained that, without any description of the

documents that were being withheld, the plaintiff "could not effectively

formulate a response to the defendants' assertion of privilege." 272 So. 3d

at 1030. We additionally stated that, "by not requiring the defendants to

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provide a privilege log, the trial court denied [the plaintiff'] of the

opportunity to present an effective argument on appeal challenging the

trial court's denial of its requests for production …." Id. Thus, contrary to

Grandview's argument, the legislature has not diminished the judiciary's

role in the discovery process when a party asserts that information is

subject to a statutory privilege. Rather, when a health-care provider such

as Grandview, asserts a statutory privilege, it must establish its

applicability in the same manner as a party asserting any other privilege.

The quality-assurance statutes and Rule 26 operate concurrently,

establishing the confidentiality of quality-assurance materials while also

requiring adherence to the procedural requirements of Rule 26.

Accordingly, the trial court did not exceed its discretion in ordering

Grandview to produce a privilege log in accordance with Rule 26(b)(6)(A)

with regard to any information or documents being withheld under a

claim of statutory privilege; for the same reasons, Grandview is not

entitled to a protective order regarding any such information or

documents.

B. Alternative Argument

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Grandview argues that, even if information or documents subject to

a statutory privilege fall within Rule 26's field of operation, it is still not

required to produce a privilege log because, it says, the affidavit it

presented sufficiently demonstrates that the materials the plaintiff seeks

are privileged quality-assurance materials under § 22-21-8 and that

disclosing any information regarding those materials would be

prejudicial to Grandview. Grandview, the party asserting privilege, "has

the burden of proving the existence of the privilege and the prejudicial

effect of disclosing the information." Ex parte Fairfield Nursing & Rehab.

Ctr., 22 So. 3d at 448. This is generally accomplished through affidavit

testimony. In this case, Grandview offered the affidavit of Austin

Bartolic, its quality manager, who stated, in relevant part:

"5. I have reviewed and am familiar with the Plaintiff's
Interrogatories and Request for Production propounded to
Grandview in this matter, and am familiar with the types of
documents, records and information that could potentially be
responsive thereto. Plaintiff's discovery requests include
Interrogatories and Requests for Production that, directly or
indirectly, seek documents and information that, to the extent
it exists, would only derive from quality assurance processes,
activities, undertakings and functions, that Grandview is
statutorily prohibited from disclosing. The absolute
confidentiality of such quality assurance documents and
information is necessary and required to promote candid and
open participation, discussion and evaluation in
[Grandview's] quality assurance processes, and to facilitate
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effective quality assurance functions necessary to achieve a
high-quality of care for all [Grandview] patients.

"….

"7. Specifically, Interrogatories Nos. 17, 21 and 22, and
Requests for Production Nos. 4, 5, 6, 7, 8, 15, 18, 22, 23, 24,
26, 29 and 32 seek documents or information that, to the
extent it exists, would have only been obtained, created,
derived, utilized and/or maintained exclusively in association
with the performance of [Grandview's] quality assurance
functions and activities. Accordingly, any information
potentially responsive to these requests would exclusively
consist of confidential documents and information derived
from Grandview's quality assurance processes, functions and
activities undertaken to assess the quality of care of all
[Grandview] patients.

"….

"9. … Moreover, quality assurance materials,
information and documents are not obtained, prepared or
maintained in the ordinary course of [Grandview's] business,
and no such material, information or document was made a
part of [Patterson's] hospital chart. Instead, information
sought by Plaintiff that pertains to the subjects of quality
assurance would be maintained in confidential quality
assurance files and records, separate and apart from any
patient's hospital chart and [Grandview's] ordinary business
records, and would have exclusively been created, obtained,
and/or utilized for quality assurance purposes, in order to
evaluate, assess and improve the quality of care for all
[Grandview] patients."

(Emphasis added.)

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The trial court determined that the affidavit was insufficient to

prevent the necessity of providing a privilege log. We agree. Grandview

cannot merely lump together all the information and documents the

discovery requests seek and then state that, to the extent that such

information or documents exist, they "would only derive from quality

assurances processes." Rather, the burden was on Grandview to provide

sufficient information to aid the trial court in determining whether the

information and documents sought are in fact privileged. In this case,

the affidavit does not even state the information or documents being

requested. For example, in Ex parte Fairfield Nursing & Rehabilitation

Center, Fairfield sought mandamus relief from an order compelling

production of any and all incident reports and complaints involving a

specific patient. In support of its assertion of privilege under § 22-21-8,

Fairfield offered the affidavits of its facility's executive director and

former director of nursing, both of whom testified:

" 'Incident reports and witness statements concerning
residents are not kept in the ordinary course of business, nor
do they become a part of the resident medical chart. ...
Incident reports and witness statements are created for
quality assurance purposes. The creation of the reports and
the gathering of statements are needed to guarantee the high
quality of care for all residents. ... The confidentiality of the
incident reports and witness statements is needed to keep
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investigations of incidents at the facility candid and open.
Production of incident reports and witness statements to
those outside the facility would be detrimental to the quality
of care provided for all residents.' "

22 So. 3d at 448. Fairfield provided a methodical response in asserting

the privilege. First, it identified the confidential materials sought to be

discovered, i.e., incident reports and witness statements; second, it

followed up with reasons as to why those materials were privileged; and,

third, it provided a rationale explaining why disclosing the materials

would be detrimental. In Ex parte Qureshi, 768 So. 2d 374 (Ala. 2000), a

plaintiff in a medical-malpractice action sought, among other things,

documents considered by a hospital in hiring a physician. In support of

its assertion of privilege under § 22-21-8, the hospital provided the

affidavit from the chairman of its credentialing committee ("the affiant"),

who testified that

"the documents that would be responsive to Request 3(h)-(k)
were maintained as part of [the hospital's] credentialing file
on [the physician]. [The affiant] further stated that it was
essential that the materials gathered by the hospital be kept
confidential, so as to ensure that physicians applying for
hospital staff privileges would provide complete and accurate
information about their qualifications. Moreover, [the affiant]
stated, if the information did not remain confidential then
'physicians and health care institutions from whom materials
are requested in the credentialing process would be less

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inclined to provide frank and open criticisms of physician
applicants where warranted.' "

768 So. 2d at 376. Again, the affiant employed a methodical and logical

approach by identifying the documents as those responsive to "Request

3(h)-(k)" and by indicating that they were maintained as part of the

hospital's credentialing file. See also Ex parte Tombigbee Healthcare

Auth., 260 So. 3d 1, 7-8 (Ala. 2017) (affiant for a hospital identified the

materials it claimed were privileged, specifically, materials regarding the

hiring, training, supervision and retention of one of its employees as well

as any complaints the hospital received pertaining to the employee).

Because the affidavit offered by Grandview was overbroad and failed to

expressly identify the specific information and documents that it claimed

were privileged, along with any relevant facts demonstrating that the

specific information or documents are quality-assurance materials,

Grandview could not satisfy its burden of demonstrating that the specific

information and documents withheld from discovery were statutorily

privileged.

IV. Conclusion

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Based on the foregoing, Grandview has failed to demonstrate a

clear legal right to the relief sought; thus, its petition for a writ of

mandamus is denied.

PETITION DENIED.

Parker, C.J., and Shaw, Wise, Bryan, Mendheim, Stewart, Mitchell,

and Cook, JJ., concur.

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