Motion to Reconsider Treated as Motion for Protective Order in Case Seeking Mandamus Review of Order Allowing Discovery in Medical Liability Act Case

In Ex parte Gentiva Health Services, Inc., released by the Alabama Supreme Court on November 14, 2008, the court reviewed a trial court’s order allowing discovery of privileged materials in a medical malpractice act even though the party against whom discovery was sought had not filed a motion for protective order in the trial court. 

Gentiva was a medical malpractice case in which the plaintiff sought to discover a resignation letter contained in the personnel file of the health care worker who he alleged had negligently treated his injuries.  The trial court ordered the defendant to produce the letter.  A few days later, the defendant filed a motion entitled "Motion to Reconsider Order Requiring Production of…Termination Letter." The trial court denied that motion, but noted that production would be delayed for 42 days to allow the defendants the opportunity to seek review of the order. 

The Alabama Supreme Court initially noted that Alabama’s Medical Liability Act, 6-5-551 of the Alabama Code, which prohibits a party in a medical malpractice action "from conducting discovery with regard to any other act or omission," is treated as a privilege.  For purposes of determining whether the trial court has disregarded a privilege in issuing a discovery order, review by  way of a petition for a writ of mandamus is appropriate.  

The court next confronted the defendant’s failure to file a motion for a protective order following the trial court’s order requiring it to produce the resignation letter.  The court pointed out that "the party seeking a writ of mandamus in a discovery dispute must properly move for a protective order under Rule 26(c)…before petitioning for the writ," as that sequencing "promotes the sound policy of affording the trial court the opportunity to address its alleged error before a party seeks mandamus relief from an appellate court to correct the alleged error."  

The court held that the defendant’s motion to reconsider served the essential functions of a motion for protective order.  That motion specifically sought to prohibit discovery of the resignation letter, as protected under 6-5-551 and clearly provided the trial court an opportunity to address its alleged error before the defendant sought mandamus relief.  "In substance," the court noted, the motion to reconsider "was actually a motion for a protective order."  Accordingly, the defendant was not procedurally barred from seeking mandamus review of the discovery order.