BOLIN, Justice.
Dr. Gerald Hodge and Tombigbee Healthcare Authority d/b/a Bryan W. Whitfield Memorial Hospital separately petition this Court for a writ of mandamus directing the Marengo Circuit Court to dismiss the claims asserted against them by Gertha R. Tucker and David Tucker, Jr., individually and as the administrator ad litem for Gertha Tucker's estate, based on the applicable statute of limitations.
Gertha Tucker underwent a hysterectomy in 2006. The hysterectomy was performed by Dr. Gerald Hodge at Bryan W. Whitfield Memorial Hospital. On December 28, 2011, Gertha was seen by a rheumatologist upon her complaints of bilateral thigh pain. An X-ray revealed the presence of a surgical hemostat clamp lodged in Gertha's peritoneal cavity. On February 8, 2012, Gertha underwent a surgical procedure to remove the retained hemostat clamp from her abdomen. Gertha
On March 5, 2012, Gertha sued Dr. Hodge, Tombigbee Healthcare Authority d/b/a Bryan W. Whitfield Memorial Hospital (hereinafter referred to collectively as "the defendants"), and others, alleging claims under the Alabama Medical Liability Act, § 6-5-480 et seq. and § 6-5-540 et seq., Ala.Code 1975. In count I of the complaint, Gertha specifically alleged that Dr. Hodge performed a hysterectomy on her in 2005;
In count II of the complaint, Gertha alleged that the defendants failed to properly manage, train, or supervise their surgical team, which, she says, directly resulted in the hemostat clamp being retained in her body and causing her injuries.
In count III of the complaint, Gertha asserted claims against Dr. Judy Travis and Dr. Ronnie Chu alleging a failure to diagnose; a failure to treat and to make a timely referral for treatment; a failure to disclose; and fraudulent suppression, which, she says, caused her condition to deteriorate resulting in her life-threatening medical problems including sepsis, infection, blood clots, possible stroke, and the removal of her appendix. On March 19, 2012, Gertha amended her complaint to add, as a plaintiff, her husband David, who asserted a claim for loss of consortium.
On March 22, 2012, Dr. Hodge moved the trial court to dismiss the amended complaint against him pursuant to Rule 12(b)(6), Ala. R. Civ. P., arguing that it was barred by the applicable statute of limitations set forth in § 6-5-482, Ala. Code 1975. On April 3, 2012, Tombigbee Healthcare answered and also moved the trial court to dismiss the amended complaint against it pursuant to Rule 12(b)(6), Ala. R. Civ. P., arguing that it was barred by the applicable statute of limitations set forth in § 6-5-482, Ala.Code 1975. Section 6-5-482(a) provides:
(Emphasis added.) The defendants argued that Gertha's injury occurred and her cause of action accrued at the time of the act or omission complained of whether or not the injury was or could have been discovered within the statutory period. See Jones v. McDonald, 631 So.2d 869 (Ala.1993) (holding that plaintiff's medical-malpractice action accrued when physician performed the surgery and left the surgical instrument in the body at the surgical site); Street v. City of Anniston, 381 So.2d 26 (Ala.1980) (holding that in medical-malpractice actions the legal injury occurs at the time of the negligent act or omission, whether or not the injury is or could be discovered within the statutory period); and Bowlin Horn v. Citizens Hosp., 425 So.2d 1065 (Ala.1982). The defendants argued that the injury complained of occurred in 2005, when Gertha underwent the hysterectomy, and that her complaint filed in 2012 is barred by the four-year period of repose set forth in § 6-5-482(a).
On July 23, 2012, the Tuckers filed a response in opposition to the defendants' motions to dismiss. Citing Crosslin v. Health Care Authority of Huntsville, 5 So.3d 1193 (Ala.2008), and Mobile Infirmary v. Delchamps, 642 So.2d 954 (Ala.1994), the Tuckers argued that Gertha's legal injury occurred in December 2011, when she first began experiencing pain in her abdomen and discovered the presence of the hemostat clamp. See Crosslin, 5 So.3d at 1196 (stating that "`[w]hen the wrongful act or omission and the resulting legal injury do not occur simultaneously, the cause of action accrues and the limitations period of § 6-5-482 commences when the legal injury occurs'" (quoting Mobile Infirmary, 642 So.2d at 958)). Thus, the Tuckers contend that the complaint filed in March 2012 was not barred by the statute of limitations found in § 6-5-482.
Gertha passed away on April 8, 2012. On July 25, 2012, David was substituted by order as the administrator ad litem and personal representative of Gertha's estate.
On August 6, 2012, David, as the personal representative of Gertha's estate, filed a second amended complaint in order to assert a wrongful-death claim against the defendants.
On August 9, 2012, Tombigbee Healthcare moved to dismiss the second amended complaint, arguing that any claims relating to the surgical procedure performed in 2006 were barred by the four-year period of repose set forth in § 6-5-482. Also on August 9, 2012, Tombigbee Healthcare moved the trial court for a partial summary judgment as to all claims asserted against it. Tombigbee Healthcare argued that Gertha's cause of action accrued in 2006, the date of the act complained of, i.e., the hysterectomy, and that her cause of
On August 10, 2012, Dr. Hodge moved the trial court to dismiss the second amended complaint, echoing Tombigbee Healthcare's argument that Gertha's estate could not maintain a wrongful-death claim without the existence of a viable medical-malpractice claim at the time of her death.
On September 27, 2012, David, individually and in his representative capacity, filed a response in opposition to the defendants' motions, arguing that the trial court had, by its order of August 2, 2012, denying Tombigbee Healthcare's initial motion to dismiss, determined that Gertha had a viable medical-malpractice claim at the time of her death on April 8, 2012. David contended that the wrongful-death claim was governed by the applicable two-year statute of limitations found in § 6-5-410, Ala.Code 1975, and not by the provisions of § 6-5-482. Thus, David argued that the wrongful-death claim asserted on August 6, 2012, was timely because it was brought within the two-year limitations period set forth in § 6-5-410.
On January 28, 2013, Dr. Hodge supplemented his motion to dismiss with the affidavits of Dr. Jerry Luther and Dr. Judy Travis, which indicate that the hemostat clamp was discovered in Gertha's abdomen by a CT scan as early as March 5, 2008; that Gertha was made aware of the discovery of the hemostat clamp in her abdomen; that Gertha refused surgery to remove the clamp; and that Gertha chose not to share the discovery of the clamp with her family because she said they would "make" her have the surgery to remove the clamp.
On January 29, 2013, David filed a response in opposition to the defendants' motions along with evidentiary material in support of the response in opposition. Following a hearing, the trial court on July 1, 2013, entered an order denying Dr. Hodge's motion to dismiss and Tombigbee Healthcare's motion for a partial summary judgment.
Dr. Hodge petitions this Court for a writ of mandamus directing the trial court to grant his motion to dismiss and to dismiss all the claims asserted against him based on the applicable statute of limitations. Tombigbee Healthcare petitions this Court for a writ of mandamus directing the trial court to grant its motion for a partial summary judgment as to all claims asserted against it based on the applicable statute of limitations. The two petitions were consolidated for the purpose of writing one opinion.
A writ of mandamus is an extraordinary remedy available only when the petitioner can demonstrate: "`(1) a clear legal right 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) the properly invoked jurisdiction of the court.'" Ex parte Nall, 879 So.2d 541,
The defendants contend that Gertha's medical-malpractice action was absolutely barred at the time of her death by the four-year period of repose set forth in § 6-5-482(a). Because, they say, Gertha did not have a viable medical-malpractice claim at the time of her death, David could not maintain the wrongful-death action against them, as that claim was also considered to be time-barred. Thus, they argue that they are entitled to a writ of mandamus directing the trial court to dispose of the claims against them.
David argues that the petitions are due to be denied because, he argues, the defendants have failed to establish a clear legal right to the relief sought in that they have failed to demonstrate that the medical-malpractice and wrongful-death claims were barred by § 6-5-482(a). Further, David argues that the petitions are due to be denied because the defendants have failed to exhaust all other remedies available to them; specifically, David argues that they have failed to seek certification for a permissive appeal pursuant to Rule 5, Ala. R.App. P.
Initially, we note that Dr. Hodge supplemented his August 10, 2012, Rule 12(b)(6) motion to dismiss with the affidavits of Dr. Luther and Dr. Travis. Rule 12(b), Ala. R. Civ. P., provides, in pertinent part:
The trial court did not expressly exclude Dr. Luther's and Dr. Travis's affidavits. Therefore, Dr. Hodge's support of his motion to dismiss with the affidavits of Dr. Luther and Dr. Travis effectively converted his motion to dismiss to a summary-judgment motion. Thus, both Dr. Hodge and Tombigbee Healthcare petition this Court for a writ of mandamus challenging the denial of a motion for a summary judgment.
In support of their petitions for a writ of mandamus, the defendants reiterate their arguments from the trial court. They argue that Gertha's legal injury occurred — and her medical-malpractice cause of action accrued — in 2006, at the time of the act or omission complained of, i.e., the hysterectomy, whether the injury was or could have been discovered by Gertha within the statutory limitations period. They state that it is immaterial whether Gertha did not actually become aware of the presence of the hemostat clamp in her body until December 2011. Thus, they conclude that the medical-malpractice action filed in March 2012 is absolutely barred by the four-year period of repose set forth in § 6-5-482(a). Further, the defendants argue that because Gertha did not have a viable medical-malpractice claim at the time of her death — because that claim was barred by the four-year period of repose — her estate could not maintain a wrongful-death action; that action would also be untimely because it relates to the complained of hysterectomy in 2006.
In support of their position, the defendants rely on Jones v. McDonald, supra. In Jones, the plaintiff underwent eye surgery
In Jones, this Court relied on the decision in Grabert v. Lightfoot, 571 So.2d 293 (Ala.1990). In Grabert, the plaintiff was referred to a surgeon to repair a hernia. On May 1, 1987, the physician performed the surgery but was unable to locate the hernia. The plaintiff was forced to undergo a second surgery performed by a different surgeon in order to repair the hernia. The second surgeon was able to locate and repair the hernia; however, the second surgery left the plaintiff impotent and also unable to work.
On May 12, 1989, the plaintiff sued the surgeon who performed the first surgery, alleging medical malpractice. The surgeon moved the trial court for a summary judgment, asserting the two-year statute of limitations found in § 6-5-482(a). The trial court granted the motion for a summary judgment, and the plaintiff appealed. In affirming the summary judgment in favor of the surgeon, this Court stated:
Grabert, 571 So.2d at 294.
Relying on the decisions in Crosslin, supra, and Delchamps, supra, David argues that Gertha's legal injury did not occur — and her medical-malpractice cause of action thus did not accrue — until December 2011, when she first began experiencing pain in her abdomen and discovered the presence of the hemostat clamp. Thus, he contends that the medical-malpractice action filed in March 2012 is timely and is not barred by § 6-5-482(a). Because, he argues, Gertha had a viable medical-malpractice claim at the time of her death, the wrongful-death claim filed within two years of Gertha's death was timely under § 6-5-410.
In Crosslin, the plaintiff was seen on February 23, 2002, at the emergency room at Huntsville Hospital complaining of nausea, dizziness, and weakness. The physician evaluated the plaintiff and ordered diagnostic tests. A radiologist reviewed the images produced by a CT scan and issued a preliminary radiology report indicating the presence of a tumor on the plaintiff's pituitary gland. Subsequently, the physician spoke with the plaintiff concerning his condition but failed to inform him of the findings of the preliminary radiology report indicating the presence of a pituitary tumor. There was no allegation that the symptoms from which the plaintiff suffered on February 23, 2002, were related to the pituitary tumor. The plaintiff' was discharged from Huntsville Hospital.
On September 1, 2005, the plaintiff returned to Huntsville Hospital complaining of a loss of vision in his left eye and decreased vision in his right eye. A CT scan of the plaintiff's head again indicated the presence of the pituitary tumor that had been previously identified. It was on this date that the plaintiff first learned of the pituitary tumor, and he alleges that he was unaware before this date of any facts that would have reasonably led to the discovery of the tumor.
On September 3, 2005, surgery was performed on the plaintiff to remove the tumor. Following the surgery, the plaintiff's vision did not improve, and he suffered from blindness and/or severely limited vision in both eyes.
On February 24, 2006, the plaintiff sued the physician and Huntsville Hospital asserting a medical-malpractice claim and alleging that Huntsville Hospital and the physician had been negligent and wanton by failing to inform him of the existence of the pituitary tumor following the 2002 CT scan that identified the tumor. Huntsville Hospital and the physician moved the trial court to dismiss the claims against them pursuant to Rule 12(b)(6), Ala. R. Civ. P. The defendants in Crosslin argued that the alleged breach of the standard of care in that case was a failure to inform the plaintiff of the presence of a pituitary tumor on February 23, 2002, and that, if the defendants breached the standard of care and caused damage as the plaintiff claims, he would have been damaged on the same date as the alleged negligence, because he was already suffering from the tumor. Because the plaintiff did not file his complaint until four years and one day after February 23, 2002, the defendants argued that the plaintiff's action was barred by the four-year period for repose set forth in § 6-5-482(a).
The plaintiff amended his complaint to allege that he suffered bodily injury after February 24, 2002, and argued in opposition
The trial court granted the defendants' motion to dismiss. In reversing the trial court's order dismissing the plaintiff's action as untimely, this Court stated:
Crosslin, 5 So.3d at 1196-99 (footnotes omitted).
In Delchamps, the plaintiff, on December 5, 1985, underwent surgery to place temporomandibular implants in her jaw. On December 10, 1991, X-rays indicated that the implants had caused severe bone degeneration in the plaintiff's temporomandibular joints. On June 2, 1992, the plaintiff sued various defendants alleging various theories of recovery, including negligence. On July 8, 1992, the plaintiff amended her complaint to add Mobile Infirmary as a defendant. Mobile Infirmary moved the trial court to dismiss the complaint against it, alleging that the claims were barred by § 6-5-482(a). The trial court denied the motion to dismiss; Mobile Infirmary was permitted to appeal the denial of its motion pursuant to Rule 5, Ala. R.App. P. In affirming the denial of the motion to dismiss, this Court stated:
Delchamps, 642 So.2d at 958.
David's reliance upon Crosslin and Delchamps is misplaced. In both Crosslin and Delchamps, the complained-of negligent
The situation in this case is more akin to those presented in Jones and Grabert, in which this Court determined that the plaintiffs suffered an immediate legal injury at the time of the alleged negligent act. In Jones, a case factually similar to the present case, the plaintiff suffered an actionable legal injury at the time the surgeon performed the surgery and left the gauze inside the plaintiff's body at the surgical site. In Grabert, the plaintiff suffered an actionable legal injury at the time the physician burdened the plaintiff with an invasive procedure without successfully locating and repairing the hernia.
Here, it is clear from the face of the second amended complaint that Gertha underwent a surgical procedure in 2006; that Dr. Hodge left a surgical hemostat clamp in her body at that time; and that she filed a medical-malpractice complaint on March 5, 2012. It is clear from the face of the second amended complaint that Gertha suffered an actionable legal injury at the time of the surgery in 2006 when Dr. Hodge left the hemostat clamp in her body, regardless of when or to what extent the complications from the negligent act would be discovered. Therefore, her medical-malpractice complaint filed on March 5, 2012, was barred by the four-year period of repose found in § 6-5-482(a). Because Gertha did not have a viable medical-malpractice action at the time of her death, David could not maintain a wrongful-death action. Hall, supra. Accordingly, we conclude that the defendants have established a clear legal right to the relief sought.
David argues that the petitions should be denied because the defendants failed to seek a permissive appeal pursuant to Rule 5, Ala. R.App. P. Generally, an order denying a motion for a summary judgment is not appealable, except by permission pursuant to Rule 5, Ala. R.App. P. F.A. Dobbs & Sons, Inc. v. Northcutt, 819 So.2d 607, 609 (Ala.2001). This Court has stated:
Ex parte Jackson, 780 So.2d 681, 684 (Ala. 2000).
As discussed above, the defendants have demonstrated from the face of Gertha's complaint a clear legal right to the relief sought. Once the trial court denied their motions for a summary judgment, the defendants were left with seeking a permissive appeal pursuant to Rule 5, Ala. R.App. P., petitioning this Court for a writ of mandamus, or possibly taking an appeal from a final verdict or judgment. Rule 5(a), Ala. R.App. P., provides:
Justice Murdock aptly explained, in his special concurrence in Ex parte Alamo Title Co., 128 So.3d 700, 714-15 (Ala.2013), the inadequacy of a Rule 5 permissive appeal and/or the taking of an appeal from a final verdict or judgment, as alternative remedies where a petitioner has established a clear legal right to the relief sought. As to Rule 5, Justice Murdock stated:
Ex parte Alamo Title Co., 128 So.3d at 714-15 (Murdock, J., concurring specially) (footnote omitted; emphasis added).
As for the notion that further litigation in the trial court and the eventual taking of an appeal from a final judgment provides an adequate remedy, Justice Murdock stated:
Ex parte Alamo Title Co., 128 So.3d at 715-17 (Murdock, J., concurring specially)(footnote omitted).
Based on the particular circumstances of this case, we agree with Justice Murdock's assessment of a Rule 5 permissive appeal as being an inadequate alternative remedy. As discussed above, the defendants have demonstrated a clear legal right from the face of Gertha's complaint to a summary judgment in their favor. The question presented here is not the type of unsettled question of law for which there is a ground for substantial difference of opinion that is generally considered in a Rule 5 permissive appeal. More importantly, there is no guarantee of Rule 5 certification because certifying an interlocutory order for a "permissive" appeal is within the wide discretion of the trial judge. Moreover, should the trial court grant its consent to appeal, there is no guarantee that this Court would accept the question certified.
Likewise, the taking of an appeal from a final judgment following further litigation of this matter is also an inadequate remedy based on the particular circumstances
As noted above, a writ of mandamus is an extraordinary remedy available only when the petitioner can demonstrate: "`(1) a clear legal right 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) the properly invoked jurisdiction of the court.'" Ex parte Nall, 879 So.2d at 543 (quoting Ex parte BOC Grp., Inc., 823 So.2d at 1272 (emphasis added)). Although characterized as an extraordinary writ, this Court has repeatedly recognized that mandamus may be appropriate in disputes over subject-matter jurisdiction, Ex parte Johnson, 715 So.2d 783 (Ala.1998); in personam jurisdiction, Ex parte Northstar Battery Co., 99 So.3d 1204 (Ala.2012); immunity, Ex parte Butts, 775 So.2d 173 (Ala.2000); venue, Ex parte Daniels, 941 So.2d 251 (Ala.2006); outbound forum-selection clauses, Ex parte Bad Toys Holdings, Inc., 958 So.2d 852 (2006); abatement, Ex parte J.E. Estes Wood Co., 42 So.3d 104 (Ala. 2010); and issues involving discovery, Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810 (Ala.2003).
As noted above, this Court has stated that the applicability of a statute-of-limitations defense is not a proper basis for issuing a writ of mandamus, because of the availability of a remedy by appeal. Ex parte Southland Bank, 514 So.2d 954, 955 (Ala.1987). However, this Court has recognized a narrow exception to the general rule regarding a statute-of-limitations defense involving fictitious parties and the relation-back doctrine, in which this Court has reviewed the merits of a trial court's denial of a summary-judgment motion where the defendant argued that the plaintiff's claim was barred by the applicable statute of limitations. Ex parte Jackson, supra.
Although the situation with which we are presented here does not involve the statute-of-limitations defense in the context of fictitious-party practice and the relation-back doctrine, the defendants, Dr. Hodge and Tombigbee Healthcare, are faced with the extraordinary circumstance of having to further litigate this matter after having demonstrated from the face of the plaintiff's complaint a clear legal right to have the action against them dismissed based on the four-year period of repose found in § 6-5-482(a). Having concluded that an appeal pursuant to Rule 5 or an appeal from a final judgment following further litigation is not an adequate remedy in this case, we conclude, based on the particular circumstances of this case, that mandamus is necessary in order to avoid the injustice that would result from the unavailability of any other adequate remedy. See Ex parte J.Z., 668 So.2d 566 (Ala.1995). This case is not to be read as a general extension of mandamus practice in the context of a statute-of-limitations defense; rather, it should be read simply as extending relief to the defendants in this case where they have demonstrated, from the face of the complaint, a clear legal right to relief and the absence of another adequate remedy.
1121194 — PETITION GRANTED; WRIT ISSUED.
1121217 — PETITION GRANTED; WRIT ISSUED.
STUART, PARKER, and WISE, JJ., concur.
BRYAN, J., concurs in the result.
MOORE, C.J., dissents.
MURDOCK, Justice (concurring specially).
I concur in the main opinion. I write separately to explain my concurrence in Part 3 of the "Discussion" section in the main opinion and, as to the issue addressed therein, why I believe this case can be distinguished from the case of Ex parte U.S. Bank National Association, 148 So.3d 1060 (Ala.2014), also decided by the Court today.
As I discuss in a dissenting opinion in U.S. Bank, this Court has long adhered to the view that most issues raised by motions to dismiss or for a summary judgment, if not properly addressed by the trial court, can be raised before this Court on appeal and that the appeal of such issues constitutes an "adequate remedy" for purposes of the elements necessary to warrant the issuance by this Court of a writ of mandamus directed to a lower court. We therefore have long adhered to a general rule, subject only to "certain narrow exceptions," that mandamus review is not available to review interlocutory orders of the trial courts of this State denying motions to dismiss or for a summary judgment. See U.S. Bank, 148 So.3d at 1060 (Murdock, J., dissenting). Counting circuit court judges, probate court judges, and juvenile court judges, there are over 200 "trial judges" throughout the numerous jurisdictions of this State who, in any given week, rule upon scores of such motions. There is only one Court of Civil Appeals and only one Supreme Court. The general rule is critical to preserving the proper balance of roles between trial and appellate courts and preserving our limited appellate resources.
Accordingly, it is with some trepidation, and no small amount of concern that we may have failed to anticipate all the ramifications of our action, that in the present case I acquiesce in the relaxation of the general rule so as to make mandamus review available where a trial court has denied a motion for a summary judgment based on the ground that the applicable statute of limitations barred the plaintiff's action and that that fact is plainly reflected on the face of the complaint. This circumstance will now become one of the "certain narrow exceptions" that we have heretofore recognized to the general rule.
Unlike in U.S. Bank, the relaxation of the general rule in the present case does not involve a question that goes to the merits of the action, at least not in the sense that question at issue in U.S. Bank does. See U.S. Bank, 148 So.3d at 1076 (Murdock, J., dissenting). Instead, the present case concerns a question as to whether a plaintiff should be allowed to pursue in our courts a decision on the merits of a claim in the face of a legal rule — a statute of limitations — that has as its purpose the avoidance of such a decision under circumstances where the ability of a court to make a correct decision on those very merits may have been denigrated. See 51 Am.Jur.2d Limitation of Actions § 7 ("A primary purpose of a statute of limitations is to ensure timely notice to the defendant of a claim against him or her, to permit the defendant to take necessary steps to gather and preserve the evidence needed to defend against the suit, so that the defendant is not prejudiced by having an action filed against him or her long after the time the defendant could have prepared a defense against the claim. Statutes of limitation are intended to provide an adverse party a fair opportunity to defend a claim, as well as to preclude claims in which a party's ability to mount
SHAW, Justice (concurring specially).
I concur in the main opinion. I write specially to note the following.
It is undisputed that this Court has the authority, based on the Alabama Constitution and statute, to issue any writs necessary for the general superintendence and control of lower courts. Ala. Const.1901, Art. VI, § 140; Ala.Code 1975, § 12-2-7(3). This Court exercises authority by mandamus to review interlocutory decisions that, if properly set aside, would terminate an action so as to avoid the waste and expense of further litigation. Such interlocutory decisions include decisions on issues of, among other things, personal jurisdiction, Ex parte Duck Boo Int'l Co., 985 So.2d 900 (Ala.2007); immunity, Ex parte Butts, 775 So.2d 173 (Ala. 2000); enforcement of outbound forum-selection clauses, Ex parte Bad Toys Holdings, Inc., 958 So.2d 852 (Ala.2006); and abatement, Ex parte J.E. Estes Wood Co., 42 So.3d 104 (Ala.2010). Most notably, this Court will review by mandamus interlocutory decisions involving the substitution of a defendant for a fictitiously named party where the defendant argues that the plaintiff's claim was barred by the applicable statute of limitations. Ex parte General Motors of Canada Ltd., 144 So.3d 236 (Ala.2013); Ex parte Chemical Lime of Alabama, Inc., 916 So.2d 594 (Ala.2005). If this Court will review by mandamus a decision on whether the statute of limitations bars a claim against one party substituted for a fictitiously named defendant, then I see no logical reason why this Court cannot review a decision on whether the entire action is barred.
As explained in the main opinion, applying clear law to the undisputed facts as stated in the complaint in the instant case, one must conclude that the underlying action is barred by the statute of limitations. It is no adequate remedy to require a defendant to try a case and then subsequently, on appeal, to seek the exact relief that was available earlier in the process. I note that this Court has inherent authority to award just damages and costs to respondents in any case in which this Court determines that a petition for the writ of mandamus is frivolous. Cf. Rule 38, Ala. R.App. P.
MOORE, Chief Justice (dissenting).
I respectfully dissent. Dr. Gerald Hodge and Tombigbee Healthcare Authority d/b/a Bryan W. Whitfield Memorial Hospital separately petition this Court for
Although this Court has constitutional and statutory authority to issue writs to superintend lower courts under Ala. Const. 1901, Art. VI, § 140, and § 12-2-7(3), Ala. Code 1975, it abuses that authority when it purports to invent, change, and modify the laws over time so that a petition for a writ of mandamus is no longer only for "emergency and immediate appellate review of an order that is otherwise interlocutory and not appealable." Rule 21(e)(4), Ala. R.App. P. The majority opinion references several cases in which this Court created new exceptions to general rules regarding mandamus relief; those references supposedly justify yet another exception to our rules regarding mandamus relief. No doubt this Court will, at some later date, reference the majority opinion in this case to justify yet another exception to those rules. At some point, there will be so many exceptions that the general rule will no longer exist. Perhaps that moment is already upon us.