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Victor Chin, M.D. treated Malik Woodward for a workplace injury. Dr. Chin requested Woodward’s consent to review records of treatment Woodward received from a psychologist after the injury. Woodward refused, but Dr. Chin obtained the treatment records anyway, through a workers’ compensation case manager. Woodward sued and moved for a protective order prohibiting disclosure of the records and requiring either their return or destruction. Dr. Chin and his practice, SportsMed Occupational Specialists, moved to change venue from Jefferson County to Madison County, where the injury occurred. The trial court granted the plaintiff’s motion for protective order and denied the defendants' motion to transfer venue.
The defendants filed a petition for writ of mandamus as to both the denial of venue transfer and the protective order. They argued that the circuit court erred in denying their motion to change venue because Woodward’s claims are governed by the Alabama Medical Liability Act (AMLA), which requires that medical malpractice claims be adjudicated in the county where the alleged breach occurred. The defendants also argued that the circuit court erred in entering the protective order because it required them to destroy Dr. Chin’s own notes summarizing the contents of the psychological records, preventing him from being able to properly defend against Woodward’s claims.
Although the plurality opinion authored by Chief Justice Parker ultimately reaches conclusions on the merits that are worth reading, it is more valuable for its instruction as to what lawyers need to include when filing mandamus petitions on venue and protective order issues.
As to the question of whether AMLA applied to Woodward’s claims for purposes of the venue motion, a divided court held that the defendants did not establish their entitlement to mandamus relief.
For the first time, the court squarely addressed the procedural standard for a motion to transfer venue. The plurality opinion held that the standard is analogous to a motion challenging personal jurisdiction – “In ruling [on a motion challenging venue] the court will consider to be true any well-pleaded allegations of the complaint that bear on venue, unless contradicted by defendant’s affidavit evidence.”
Thus, the defendants had two primary options to show that the AMLA applied to the case:
Argue that the allegations of the complaint did not support a reasonable inference that Dr. Chin lacked a medical reason for obtaining Woodard’s psychological records; or
Submit affidavit evidence that Dr. Chin had a medical reason for getting the records. Because the defendants did not pursue either option, mandamus relief on the venue issue was denied.
The plurality opinion also rejected the defendant’s arguments regarding the protective order.
Despite the fact that the trial court granted the motion for the protective order in less than 24 hours, without giving defendants an opportunity to be heard, and despite the fact that all parties consented to void the “return or destroy” requirement in the order, the plurality held that the “SportsMed defendants had ample opportunity to put on the record their contentions about the nature and legal relevance of the notes.”
In order to be reviewable on mandamus, the court noted that a discovery order must
Impose sanctions effectively precluding a decision on the merits,
Deny discovery going to a party’s entire action or defense so that the case is all but determined without allowing a trial on the merits, or
Impermissibly prevent the petitioner from making a record on the discovery issue, thus precluding appellate review.
The court observed that the defendants could have asserted that it was necessary to file Dr. Chin’s notes with the court, which they could not do if they were destroyed. The court also rejected, for lack of citation to authority, the defendants’ argument that the protective order violated due process and their right to jury trial and thus was void. Thus, the court held that the defendants failed to show that the protective order was the type of discovery order subject to mandamus review.
What can we learn from this opinion?
Take all possible steps to create a record on mandamus that will support your position. They call it an extraordinary remedy for a reason.
When moving to transfer venue, support the record with affidavit evidence controverting the allegations of the complaint, just like you would with a motion to dismiss for lack of personal jurisdiction.
When filing a mandamus petition regarding granting of a protective order, make sure you can argue (with citation to authority) that the order fits into one of the three categories sufficient to require mandamus review.