Ex parte Air Evac EMS, Inc. PETITION FOR WRIT OF MANDAMUS (In re: Ex parte Air Evac EMS, Inc. (In re: Earnest Charles Jones, by and through Ovetta Jones, as spouse and next friend v. Bryan Heath Wester) (Dallas Circuit Court: CV-20-900199).

Rel: March 21, 2025

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
errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA
OCTOBER TERM, 2024-2025

_________________________

SC-2024-0732
_________________________

Ex parte Air Evac EMS, Inc.

PETITION FOR WRIT OF MANDAMUS

(In re: Earnest Charles Jones, by and through Ovetta Jones, as
spouse and next friend

v.

Bryan Heath Wester et al.)

(Dallas Circuit Court: CV-20-900199)

COOK, Justice.
SC-2024-0732

On August 27, 2018, Earnest Charles Jones ("Earnest") was

attacked and severely injured by a bull. After first being taken to a local

hospital, Earnest was ultimately transported by helicopter to University

of South Alabama Hospital ("USA Hospital") for treatment. During

transport, Earnest suffered injuries to his throat allegedly because Bryan

Heath Wester, a flight nurse and paramedic, removed a nasal-gastro tube

from Earnest's throat.

Almost two years later, on August 24, 2020, Ovetta Jones

("Ovetta"), as the spouse and next friend of Earnest, filed suit in the

Dallas Circuit Court against the defendants, Wester and Air Evac EMS,

Inc., d/b/a Air Evac Lifestream ("Air Evac"), alleging claims of negligence

and wantonness related to the care and treatment of Earnest during his

transport to USA Hospital.

Nearly four years after they filed their initial complaint and nearly

six years after Earnest was injured, the Joneses amended their

complaint. The amended complaint alleged that on August 26, 2018 -- the

day before Earnest's air transport -- Wester unlawfully stole pain

medication (ketamine) from the helicopter, substituting saline solution

in its place. It further alleged that the other flight nurses failed to

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discover this fact, failed to properly treat Earnest's pain, and/or failed to

properly monitor his medical condition during his transport. The Joneses

also alleged that Air Evac failed to properly train, hire, and supervise its

employees and failed to comply with state and federal guidelines

regarding the storage of ketamine.

Air Evac filed a motion for a summary judgment in which it argued

that the amended complaint was due to be dismissed because it was time-

barred under the applicable statutes of limitations and repose. It also

argued that the new allegations in the amended complaint did not relate

back to the filing of the initial complaint because they were completely

different from the allegations in the initial complaint. Following a

hearing on the motion, the trial court denied Air Evac's motion.

Air Evac then petitioned this Court for a writ of mandamus

directing the trial court to vacate its order denying its summary-

judgment motion and to enter a summary judgment disposing of the

amended complaint on the grounds that the claims asserted therein are

barred by the applicable statutes of limitations and repose and, thus, do

not relate back to the time the initial complaint was filed. As explained

below, because it is clear from the face of both the initial complaint and

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the amended complaint that the claims asserted in the amended

complaint are time-barred, the trial court erred in denying Air Evac's

motion for a summary judgment.

Facts and Procedural History

A. The Joneses' Initial Complaint

On August 24, 2020, the Joneses commenced the underlying action

in the Dallas Circuit Court against Wester and Air Evac. In their initial

complaint, the Joneses alleged that, on August 27, 2018, during the

emergency medical transport to Mobile by helicopter, Wester, a flight

nurse and paramedic, forcibly removed a nasal-gastro tube from Earnest

in a negligent and/or wanton manner, causing permanent injury to his

throat in several ways.

They further alleged that Air Evac was Wester's employer and that

his tortious act was committed within the line and scope of his

employment with the company. Specifically, the Joneses alleged:

"Count I

"1. … On or about the 27th day of August 2018, … Defendant
Bryan Heath Wester negligently, wantonly, and intentionally
caused bodily injury to Plaintiff Earnest C. Jones by forcibly
removing an intravenous (or nasal-gastro) tube providing
medication being delivered to [Earnest] … while being
transported and airlifted aboard a helicopter owned and
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operated by Defendant Air Evac Lifeteam ….

"2. As a proximate result of the Defendant's said negligent
and wanton conduct, [Earnest] was caused to suffer the
following injuries and damages: bruising, abrasions, and
scarring to his throat, larynx, pharynx, and voice box.
Furthermore, [Earnest] was caused … [to suffer] nightmares,
loss of ability to talk, sing, and effectively communicate
verbally.

".…
"Count II

"1. On or about the 27th day of August, 2018, the Defendant
… Wester committed an assault and battery upon [Earnest]
by unlawfully, physically, and forcibly removing the medical
tubing from [Earnest's] mouth and throat ….

"2. As a proximate result of Defendant … Wester's conduct,
[Earnest] was caused to suffer the following injuries and
damages: bruising, abrasions, and scarring to his throat,
larynx, pharynx, and voice box. Furthermore, [Earnest] was
caused … [to suffer] nightmares, loss of ability to talk, sing,
and effectively communicate verbally.

".…
"Count III

"….

"2. At all times mentioned, Defendant … Wester was the
agent, servant, and employee of the Defendant Air Evac EMS,
d/b/a/ as Air Evac Lifeteam, (hereinafter 'Air Evac'), and was
acting at all times within the scope of his agency and
employment, and with the knowledge and consent of his
principal and employer.

"….
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"4. On or about the 27th day of August, 2018, while [Earnest]
was being treated for traumatic physical injuries and was
being transported from Vaughan Regional Medical Center in
Selma, Dallas County, Alabama to USA Medical Center in
Mobile, Mobile County, Alabama by Defendant Air Evac, the
Defendant … Wester acting as an emergency medical
technician or nurse, committed an assault and battery upon
[Earnest] by unlawfully, physically, and forcibly removing the
medical tubing from [Earnest's] nose and throat ….

"5. As a proximate result of the Defendants' said acts and
omissions, [Earnest] was caused to suffer the following
injuries and damages: bruising, abrasions, and scarring to his
throat, larynx, pharynx, and voice box. Furthermore,
[Earnest] was caused … [to suffer] nightmares, loss of ability
to talk, sing, and effectively communicate verbally."

B. The Joneses' Amended Complaint

Then, on April 26, 2024 -- nearly four years after they filed their

initial complaint and nearly six years after Earnest was injured -- the

Joneses amended their complaint to allege claims pursuant to the

Alabama Medical Liability Act ("the AMLA"), § 6-5-480 et seq. and § 6-5-

540 et seq., Ala. Code 1975. In the amended complaint, the Joneses

alleged that, the day before Earnest's flight, Wester accessed the

controlled-substances box on the helicopter, removed two vials of

ketamine, and replaced the ketamine with saline solution.

They then alleged that, during Earnest's transport, two flight

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nurses -- Lindy Stephens and Ryan Zoubovitch -- administered the saline

solution to Earnest in place of ketamine, despite the fact that it was

evident that the medication had been tampered with. They also alleged

that the flight nurses improperly continued to administer Versed and

fentanyl to Earnest despite his continuing to experience discomfort and

pain.

The Joneses further alleged that Air Evac, through its flight nurses,

Stephens and Zoubovitch,1 breached the applicable standard of care by

failing to:

• "recognize and appropriately respond to [Earnest's] pain
and discomfort during his transport from Vaughan to USA
Hospital";

• "recognize the risks of utilization of Versed as opposed to
ketamine to treat [Earnest's] pain and discomfort during
his transport from Vaughan to USA Hospital";

• "appropriately monitor [Earnest's] pain and discomfort
during his transport from Vaughan to USA Hospital";

• "properly discontinue Versed in light of the minimal effect
it had on [Earnest's] pain and discomfort during his
transport from Vaughan to USA Hospital";

• "properly communicate with other healthcare providers
that [Earnest] was administered a dosage of ketamine that

1Stephens
and Zoubovitch were not added as defendants in the
amended complaint.
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was believed to have been tampered with or otherwise
compromised";

• "properly document in the medical records that [Earnest]
was administered a dosage of ketamine that was believed
to have been tampered with or otherwise compromised";
and

• "have a conversation with [Earnest], [Ovetta], or other
medical providers and administered a dosage of ketamine
that was believed to have been tampered with or otherwise
compromised."

Finally, the Joneses argued that Air Evac negligently and wantonly

failed to adhere to state and federal guidelines regarding access, storing,

administering, and disposing of controlled substances, such as ketamine,

and further failed to properly train, hire, and supervise employees on

state and federal guidelines regarding access, storing, administering, and

disposing of such controlled substances.

C. Air Evac's Summary-Judgment Motion

On July 2, 2024, Air Evac moved for a summary judgment on the

basis that the Joneses' claims in their amended complaint were time-

barred under the applicable two-year statute of limitations and four-year

statute of repose.

Air Evac further argued that the claims in the amended complaint

did not relate back to the filing of the initial complaint under Rule
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15(c)(2), Ala. R. Civ. P., because, it asserted, the amended complaint

contained "completely new factual allegations and … completely new

causes of actions not mentioned or alluded to in [the] initial Complaint."

Specifically, Air Evac argued that the amended complaint "does not

assert a claim that arose out of the conduct, transaction or occurrence set

out or attempted to be set out in the initial Complaint and, therefore, is

time-barred."

Air Evac explained that "[t]he sole allegation in [the Joneses']

initial Complaint is that Wester caused [Earnest] damages to his throat

by 'forcibly removing an intravenous (or nasal-gastro) tube.' " In

comparison, Air Evac explained that the amended complaint, "for the

first time, raises the allegation that Wester diverted ketamine that was

subsequently administered to [Earnest]"; "for the first time alleges [that]

the Air Evac flight crew who provided care and treatment to [Earnest] on

August 27, 2018, Nurse Lindy Stephens and paramedic Ryan Zoubovitch

(and not Wester), breached the standard of care allegedly causing

[Earnest's] injuries"; and "for the first time alleges Air Evac was

negligent in hiring, training and supervising its employees regarding

storing, accessing, administering and disposing of controlled substances."

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Because the Joneses' amended complaint "has no resemblance to

the initial complaint and contains completely different causes of action

alleged against different individuals," Air Evac concluded, the Joneses'

amended complaint "does not relate back to the initial Complaint, is time-

barred by the two-year statute of limitations and four-year statute of

repose, and [is] due to be DISMISSED as a matter of law." (Capitalization

in original.)

In response to Air Evac's motion, the Joneses submitted an affidavit

pursuant to Rule 56(f), Ala. R. Civ. P., asserting that they needed

additional discovery of facts to oppose the motion. Air Evac responded,

contending that, because the issue presented was a question of law, the

two complaints were all that was needed to determine whether the

amended complaint relates back to the filing of the initial complaint.

Following a hearing, the trial court denied Air Evac's motion. Air

Evac then filed the present petition for a writ of mandamus with our

Court, and we subsequently ordered answers and briefs.

Standard of Review

It is well settled that

"a writ of mandamus is an extraordinary remedy available only
when the petitioner can demonstrate:
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" ' "(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 Hodge, 153 So. 3d 734, 749 (Ala. 2014) (quoting Ex parte Nall,

879 So. 2d 541, 543 (Ala. 2003), quoting in turn Ex parte BOC Grp., Inc.,

823 So. 2d 1270, 1272 (Ala. 2001)) (emphasis omitted).

This Court typically does not conduct mandamus review of a trial

court's denial of a motion for a summary judgment. See Ex parte

Simpson, 36 So. 3d 15, 22 (Ala. 2009). However,

" '[t]his Court has recognized that an appeal is an
inadequate remedy in cases where it has determined that a
defendant should not have been subjected to the
inconvenience of litigation because it was clear from the face
of the complaint that the defendant was entitled to a
dismissal or to a judgment in its favor.' "

Ex parte Abbott Lab'ys, 342 So. 3d 186, 193 (Ala. 2021) (quoting Ex parte

Sanderson, 263 So. 3d 681, 687-88 (Ala. 2018)).

This Court has stated the applicable standard of review relevant to

a petition for a writ of mandamus challenging the denial of a motion for

a summary judgment as follows:

" ' " 'Summary judgment is appropriate only
when "there is no genuine issue as to any material
fact and ... the moving party is entitled to a
11
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judgment as a matter of law." Rule 56(c)(3), Ala. R.
Civ. P., Young v. La Quinta Inns, Inc., 682 So. 2d
402 (Ala. 1996). A court considering a motion for
summary judgment will view the record in the
light most favorable to the nonmoving party,
Hurst v. Alabama Power Co., 675 So. 2d 397 (Ala.
1996), Fuqua v. Ingersoll-Rand Co., 591 So. 2d 486
(Ala. 1991); will accord the nonmoving party all
reasonable favorable inferences from the evidence,
Fuqua, supra, Aldridge v. Valley Steel Constr.,
Inc., 603 So. 2d 981 (Ala. 1992); and will resolve all
reasonable doubts against the moving party,
Hurst, supra, Ex parte Brislin, 719 So. 2d 185 (Ala.
1998).

" ' " 'An appellate court reviewing a ruling on
a motion for summary judgment will, de novo,
apply these same standards applicable in the trial
court. Fuqua, supra, Brislin, supra. Likewise, the
appellate court will consider only that factual
material available of record to the trial court for its
consideration in deciding the motion. Dynasty
Corp. v. Alpha Resins Corp., 577 So. 2d 1278 (Ala.
1991), Boland v. Fort Rucker Nat'l Bank, 599 So.
2d 595 (Ala. 1992), Rowe v. Isbell, 599 So. 2d 35
(Ala. 1992).' "

" 'Ex parte Turner, 840 So. 2d 132, 135 (Ala. 2002) (quoting Ex
parte Rizk, 791 So. 2d 911, 912-13 (Ala. 2000)).' "

Ex parte Town of Dauphin Island, 274 So. 3d 237, 242 (Ala. 2018)

(quoting Ex parte Yancey, 8 So. 3d 299, 303-04 (Ala. 2008)). This Court

likewise reviews de novo a trial court's application of Rule 15(c)(2), Ala.

R. Civ. P. See Prior v. Cancer Surgery of Mobile, P.C., 959 So. 2d 1092,

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1094-95 (Ala. 2006).

Discussion

In its petition for a writ of mandamus, Air Evac argues that the

trial court erred in denying its motion for a summary judgment because,

it says, the Joneses' claims alleged in the amended complaint were barred

by the two-year statute of limitations and the four-year statute of repose

found in the AMLA. Air Evac further argues that, under Rule 15(c)(2),

Ala. R. Civ. P., the amended complaint does not relate back to the filing

of the initial complaint because, it says, the claims asserted in the

amended complaint did not arise out of the conduct, transaction, or

occurrence set forth -- or attempted to be set forth -- in the initial

complaint.

As relevant here, the AMLA provides that "[a]ll actions against

physicians, … medical institutions, or other health care providers for

liability, error, mistake, or failure to cure … must be commenced within

two years next after the act, or omission, or failure giving rise to the

claim, and not afterwards." § 6-5-482(a), Ala. Code 1975 (emphasis

added). It also provides that "in no event may the action be commenced

more than four years after such act …." Id. (emphasis added).

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Our Court has long recognized that the Alabama Rules of Civil

Procedure allow parties to amend their complaints. Rule 15(a), Ala. R.

Civ. P. We have explained that, "[e]ven if otherwise barred by the

applicable statute of limitations, an amendment to a complaint may be

allowed if it 'arose out of the conduct, transaction, or occurrence set forth

or attempted to be set forth in the original pleading ….' Rule 15(c)(2), Ala.

R. Civ. P." Prior, 959 So. 2d at 1095.

It is undisputed that the Joneses' amended complaint was not filed

within four years of the complained-of acts. See § 6-5-482(a). Thus, the

question we must decide is whether their amended complaint " ' arose out

of the conduct, transaction, or occurrence set forth or attempted to be set

forth in the original pleading ….' Rule 15(c)(2), Ala. R. Civ. P." Prior, 959

So. 2d at 1095.

This Court recently addressed a situation similar to the one at issue

here in Ex parte Affinity Hospital, LLC, 373 So. 3d 180 (Ala. 2022). In

that case, the initial complaint averred that Catherine Davis had

undergone outpatient surgery and had sustained unintended lacerations

during the procedure. Davis ultimately suffered from a severe infection

and abdominal compartment syndrome. The initial complaint asserted

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that the medical staff had breached the standard of care by " ' [n]egligently

perform[ing] invasive procedures causing injury' and by failing to: 'timely

diagnose [the] laceration,' 'emergently treat [the] laceration,' 'monitor for

signs of infection,' 'report signs of infection,' 'diagnose [the] infection,'

'treat [the] infection,' and 'formulate, implement and execute a plan of

care,' or 'obtain [a] timely consult.' " Ex parte Affinity Hosp., 373 So. 3d at

181.

After the two-year statute of limitations had run, the plaintiff in

that case filed an amended complaint averring, for the first time, that

Davis had been a diabetic and that, after her surgery, she had suffered

from fluctuating blood-glucose levels and mental confusion. The plaintiff

further alleged that the defendants neither monitored her blood-glucose

levels nor reassessed her for fall-risk safety. The plaintiff then alleged

that, while in the hospital, Davis had fallen and suffered a perforated

viscus, leading to abdominal compartment syndrome and her ultimate

death.

The amended complaint specifically alleged that the defendants had

breached the standard of care by failing to: " ' properly monitor [Davis's]

blood glucose levels and report results to [her] physicians' " ;

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" ' appropriately monitor, manage, and/or treat [her] blood glucose levels,

according to physician orders and/or hospital policies, procedures, and/or

guidelines' " ; " ' properly assess and timely report [her] material changes

in condition' " ; " ' timely and properly perform a fall risk assessment for

[her], following her changes in condition, including but not limited to a

change in mental status' " ; " ' recognize, diagnose, and provide

interventional treatment for [her], following her material changes in

condition' " ; " ' notify or communicate with [her] other healthcare providers

about [her] material changes in condition' " ; " ' properly timely review,

interpret, or diagnose [her] low blood glucose levels and provide

interventional treatment' " ; and " ' investigate, examine, or provide any

follow-up work-up for the cause of [her] distended abdomen.' " Id. at 183-

84. The defendants filed motions to dismiss the amended complaint as

time-barred, which the trial court denied.

The defendants filed a mandamus petition with this Court, averring

that the claims in the amended complaint were barred by the applicable

statute of limitations and did not relate back to the filing of the initial

complaint. The plaintiff in turn argued that the claims asserted in the

amended complaint properly related back because, he asserted, they arose

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out of allegations that, during the three-day period after Davis's surgery,

the defendants had provided improper care to Davis, leading to abdominal

injury and abdominal compartment syndrome, which, in turn, caused her

death.

Upon review, this Court granted the petition and issued the writ,

finding that the claims asserted in the amended complaint were time-

barred and due to be dismissed. This Court explained "that whether an

amended complaint will relate back to an original complaint focuses on

whether the amended complaint consists of a refinement of the original

allegations, and therefore is permissible under Rule 15(c)(2), or addresses

different conduct, transactions, or occurrences than originally pleaded,

and therefore will not relate back." Id. at 188. In such circumstances, we

explained that the applicable test is " ' whether the proposed amendment

is a different matter, another subject of controversy, or the same matter

more fully or differently laid to meet the possible scope of the testimony.' "

Id. (citation and emphasis omitted).

Applying this test, our Court analyzed both the initial complaint

and the amended complaint and found that the amended complaint "did

not simply assert a new theory of liability … or add facts that explained

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conduct that previously had been alleged." Id. at 190. Instead, our Court

noted that the amended complaint "altered what occurrence allegedly

caused [Davis's] injuries and what conduct of [the defendants] allegedly

exacerbated the occurrence that precipitated [Davis's] death." Id. As a

result, our Court held that the amended "complaint clearly addresses

conduct distinct in kind and in time from the conduct alleged in [the]

original complaint (and five subsequent amended complaints)," and,

therefore, the amended "complaint cannot relate back to [the] original

complaint." Id. at 192.

In the same way, here, the Joneses' amended complaint -- filed

nearly four years after they filed their initial complaint and nearly six

years after Earnest was injured -- alleged entirely new facts that occurred

on a different day and by different individuals than previously set forth

in the initial complaint. For instance, the sole allegation in the Joneses'

initial complaint was that on August 27, 2018, flight nurse and

paramedic Wester physically removed a tube from Earnest's throat,

causing him "bruising, abrasions, and scarring to his throat, larynx,

pharynx, and voice box" as well as "nightmares, loss of ability to talk,

sing, and effectively communicate verbally." Because Wester was an

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employee of Air Evac at the time of that alleged conduct, the Joneses

alleged that Air Evac was liable under a theory of respondeat superior.

In the amended complaint, however, the Joneses alleged that on

the previous day, August 26, 2018, Wester intentionally replaced the

ketamine on the helicopter with saline solution, and that on August 27,

2018, two different flight nurses -- Stephens and Zoubovitch --

"knowingly administered" the saline solution to Earnest. Further, the

Joneses alleged that Air Evac was liable for negligent and wanton hiring,

training, and supervision of its employees and for failing to "comply with

the state and federal guidelines regarding the storage of controlled

substances."

Reviewing both the initial complaint and the amended complaint

side-by-side, the claims asserted in the Joneses' amended complaint do

not arise out of the same set of operative facts as the claims asserted in

the initial complaint. For instance, the amended complaint alleged for

the first time that Earnest's injuries were the result of conduct that

occurred on August 26, 2018. It also alleged an entirely new cause of

Earnest's injuries: Wester's replacing ketamine with saline solution that

was subsequently administered to Earnest. In contrast, the initial

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complaint alleged that Earnest's injuries were proximately caused by the

forceful removal of a medical tube from his throat and mouth.

Additionally, the initial complaint and the amended complaint

involve allegations of different breaches of the standard of care by, in

large part, different individuals. The alleged breaches of the standard of

care -- the incompetent removal of a nasal-gastro tube versus the theft of

medication a day earlier, the failure to discover that the medication had

been replaced with saline solution, and/or failure to properly monitor and

treat Earnest's pain and suffering during the transport -- are completely

different and not related to one another.

Most tellingly, the sole breach of the standard of care alleged, and

the operative facts pleaded in the initial complaint are nowhere to be

found in the amended complaint. In fact, there is no mention of the

removal of a nasal-gastro tube or a throat injury at all in the amended

complaint.

The Joneses do not dispute these facts in their response brief to this

Court. Based on the foregoing, the allegations in the amended complaint

are not a mere refinement of what the Joneses pleaded in the initial

complaint. Instead, they are "drastic departures from the allegations in

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the original complaint concerning both the cause of [Earnest's] initial

injuries and the conduct of [the defendants] that allegedly caused

[Earnest's injuries]." Ex parte Affinity Hosp., 373 So. 3d at 191. Because

the Joneses' amended complaint "clearly addresses conduct distinct in

kind and in time from the conduct alleged in [their] original complaint,"

id. at 192, and "listed several actions by [the defendants] that [the

Joneses] alleged had breached the applicable standard of care owed to

[Earnest] that were entirely different than some of the actions listed in

the original complaint," id. at 191, their amended complaint cannot relate

back to the filing of their initial complaint.

Conclusion

For the foregoing reasons, Air Evac has demonstrated a clear legal

right to relief here, and its petition is granted. Accordingly, we issue a

writ of mandamus directing the Dallas Circuit Court to vacate its order

denying Air Evac's motion for a summary judgment as to the Joneses'

amended complaint and to, instead, enter an order granting that motion.

PETITION GRANTED; WRIT ISSUED.

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

and McCool, JJ., concur.

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