Alabama Scene

Supreme Court on the verge of giving immunity to private hospitals



Our black-robed Alabama Supreme Court has turned its back on the people of Alabama who might be subjected to malpractice at medical facilities merely affiliated with stateowned hospitals such as those at UAB and South Alabama.

In a decision this past January, the court in Health Care Authority for Baptist Health v. Kay E. Davis overturned a $3.2-million verdict by a Montgomery County jury in the death of 73-year-old Laurie Ellison. Davis, as executrix of the Ellison estate, filed the lawsuit in 2006.

In a 4-3 decision, authored by Associate Justice Mike Bolin, the court said that Baptist Health could not be sued because it had entered into an affiliation agreement with the UAB Health System in 2004, about a year before forming its own health care authority. Because of its affiliation with UAB, Bolin, in the majority opinion, wrote that Baptist Health enjoys the same immunity the state has from lawsuits.

The hospital had appealed a 2009 Montgomery County jury’s verdict that Baptist Health was negligent when it failed to notify Ellison or her physician that a throat culture had come back positive for a deadly type of pneumonia. The culture was done during a hospital visit in September of 2005.

A month later Ellison was re-admitted to Baptist Medical Center East in the Capital City and diagnosed as having MRSA pneumonia. She died five days later. The hospital contended at trial that she actually died of congestive heart failure.

The four-vote majority at the High Court ruled that regardless of the cause, the hospital could not be sued because it had governmental immunity through its relationship to The University of Alabama and the University of Alabama at Birmingham Health System.

In a dissent, then Chief Justice Sue Bell Cobb expressed concern about Bolin’s opinion and what it could mean to Alabama hospital patients. She wrote that the majority opinion essentially implies that Baptist Health “is no longer legally responsible for the harm that may be caused by its negligence in providing health care to the citizens of this state.”

The plaintiffs asked for a rehearing shortly after the January verdict. Over 100 state lawyers authorized their names to be used on the petition asking the justices to reopen the case so the multiple issues involved in the decision can be fully resolved.

The main issue, however, is whether health care authorities that are affiliated with state universities are now a part of the state of Alabama. Lawyers seeking a rehearing say the court reached this conclusion at the appellate level without any testimony or arguments in the trial court.

William Powell, an attorney for the friendof the-court group, told The Tuscaloosa News that the fallout extends beyond the impact on potential negligence lawsuits. “If you work for the private hospitals and think you’re a state employee, I’d be asking, ‘Where are my benefits?’ ” Powell said. He added that a rehearing is needed because of the implications of the ruling and the number of new justices on the court since it was issued

Powell told The News he believes political considerations are the reason the Supreme Court has yet to rule on a rehearing. “Business interests could try to unseat justices who rule that businesses are responsible for workers’ compensation or could be sued,” he told The News.

“I think the case would have to be reversed and no one wants to sign their name until the date to register as a candidate for the Supreme Court has expired,” Powell said.

Birmingham lawyer Mark White, a former president of the Alabama Bar Association, told me “a genie has been let out of the bottle by the court and it is like one of those monster trucks. Nobody wants to predict what will happen next but the genie must be put back.” A color void at The Iron Bowl

Color was prevalent at the Iron Bowl played at Jordan-Hare Stadium in Auburn last Saturday. There was an abundance of crimson, orange, blue, and white. I was there decked out in orange, blue, and white complete with a vintage cap from the 1970s.

But during the halftime show, which I usually avoid, I noticed something I thought quite strange. The Auburn and Alabama bands both provided fine entertainment, and I feel sure that under those band uniforms and caps there was as diverse a group of musicians as the players on the football teams.

But when I surveyed the girls who were flag bearers and majorettes, I saw only light skin. Surely, there are enough young ladies of a color other than white at our two major universities who could make the halftime dancing squad.

It was such an obvious absence, I believe the universities owe Alabamians an explanation.

Bob Martin is editor and publisher of The Montgomery Independent. E-mail him at: