Donald J. Mottern, as administrator of the Estate of Lavonne S. Mottern v. Baptist Health System, Inc., d/b/a BMC - Princeton Medical Center (Appeal from Jefferson Circuit Court: CV-11-901140).

Rel: September 6, 2024

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
SPECIAL TERM, 2024

_________________________

SC-2024-0148
_________________________

Donald J. Mottern, as administrator of the Estate of Lavonne S.
Mottern, deceased

v.

Baptist Health System, Inc., d/b/a BMC - Princeton Medical
Center

Appeal from Jefferson Circuit Court
(CV-11-901140)

SELLERS, Justice.
SC-2024-0148

Donald J. Mottern ("Mottern"), as administrator of the estate of

Lavonne S. Mottern, deceased, appeals from a judgment of the Jefferson

Circuit Court dismissing Mottern's claims against Baptist Health

System, Inc. ("BHS"), d/b/a BMC - Princeton Medical Center. Lavonne

died after she was administered a contaminated intravenous injection at

Princeton Medical Center. The primary issue in this appeal is whether

the trial court erred in dismissing Mottern's claim under the Alabama

Extended Manufacturer's Liability Doctrine ("the AEMLD") and his

claim alleging a breach of implied warranty under the Uniform

Commercial Code ("the UCC"), Ala. Code 1975, § 7-3-101 et seq. Mottern

argues that, under the Alabama Medical Liability Act ("the AMLA"), Ala.

Code 1975, § 6-5-480 et seq. and § 6-5-540 et seq., he is entitled to pursue

theories of liability in addition to what might be described as traditional

"medical malpractice." We agree with that proposition. However, we also

agree with BHS that all of Mottern's claims, including those based on the

AEMLD and warranty provisions of the UCC, are subject to the standard-

of-care provisions set out in the AMLA. With that caveat, we reverse the

trial court's judgment and remand the matter for further proceedings

consistent with this opinion.

2
SC-2024-0148

After undergoing surgery at Princeton Medical Center, Lavonne

died from a blood infection caused by a bacterially contaminated

intravenous infusion of total parenteral nutrition ("TPN"), which is a

method of providing nutrition to patients who cannot digest foods.

Princeton Medical Center is operated by BHS. The TPN Lavonne

received was manufactured and provided to BHS by Meds I.V., LLC.

As the administrator of Lavonne's estate, Mottern commenced an

action in the trial court against BHS, Meds I.V., and three individuals

associated with Meds I.V. Mottern settled his claims against Meds I.V.

and the three individual defendants, and those claims were dismissed.

Mottern's claims against BHS remained pending and were set for trial.

Mottern's complaint, as amended, set out four counts against BHS,

namely, a claim of negligence, a claim of wantonness, a claim under the

AEMLD, and a claim alleging breach of implied warranty under the UCC.

Two weeks before the trial was scheduled to begin, BHS filed a motion to

strike Mottern's AEMLD and UCC breach-of-warranty claims. In

support, BHS asserted that Mottern had taken what BHS says is an

incorrect position that Mottern's AEMLD and UCC breach-of-warranty

claims are not subject to the requirement in the AMLA that claims

3
SC-2024-0148

against medical providers alleging medical injury must be supported by

substantial evidence of a breach of the applicable standard of care. See

generally §§ 6-5-540, 6-5-542(2), 6-5-548, and 6-5-549, Ala. Code 1975

(providing that the standard of care in cases alleging "medical injury" is

the "level of such reasonable care, skill, and diligence as other similarly

situated health care providers in the same general line of practice[]

ordinarily have and exercise in like cases" and that a breach of the

standard of care must be proven by "substantial evidence"). In other

words, BHS asserted that, to the extent that Mottern claimed that his

AEMLD and UCC breach-of-warranty claims under the UCC did not

require him to prove that BHS breached the standard of care recognized

by the AMLA, those claims should be stricken and dismissed.

After hearing oral arguments, the trial court indicated that it would

grant BHS's motion and directed the parties to submit a proposed order

dismissing the AEMLD and UCC breach-of-warranty claims, which the

parties did. The trial court, however, modified the proposed order and

4
SC-2024-0148

dismissed all four of Mottern's claims against BHS, including the counts

alleging negligence and wantonness. Mottern appealed. 1

As an initial matter, BHS agrees with Mottern that the trial court's

dismissal of Mottern's negligence and wantonness claims, which BHS

describes as "garden variety medical malpractice claims," should be

reversed. BHS's brief at 10. Although the trial court concluded that the

negligence and wantonness claims did not meet the strict pleading

standards under the AMLA, see § 6-5-551, Ala. Code 1975, BHS concedes

that it did not ask the trial court to dismiss those claims and that it

received "sufficient notice as to Mr. Mottern's allegations supporting his

claim for medical negligence and wantonness." BHS's brief at 13. Thus,

BHS "agrees with Mr. Mottern that the trial court's order dismissing

Counts One and Two should be reversed." Id. at 14.

As for Mottern's AEMLD and UCC breach-of-warranty claims,

however, BHS asserts that they were properly dismissed. As noted,

according to BHS, those claims are subject to the AMLA and must be

1Although the trial court's judgment purports to certify that
judgment for a permissive appeal from an interlocutory order under Rule
5, Ala. R. App. P., the judgment disposes of all the claims that were
pending below. The parties and this Court agree that the judgment is
therefore final and appealable as a matter of right.
5
SC-2024-0148

supported by a demonstration that BHS breached the applicable

standard of care as defined by the AMLA.

Mottern, however, asserts that, to recover under the AEMLD and

the UCC for BHS's administration of contaminated TPN in connection

with Lavonne's surgery, he does not have to establish that BHS breached

any standard of care at all. According to Mottern, to recover under the

AEMLD, he merely has to demonstrate that the TPN was defective, that

BHS was a seller of TPN, that BHS sold the TPN in question to Lavonne,

that the TPN caused Lavonne's death, and that there was no substantial

change to the TPN from the time it left BHS's possession until it reached

Lavonne. As for his UCC breach-of-warranty claim, Mottern asserts that

he has to demonstrate that BHS was "regularly" involved in the business

of selling TPN, that it sold the TPN in question to Lavonne, that the TPN

was not suitable for its ordinary purpose, and that the TPN harmed

Lavonne. Allegations that BHS was at fault in the sense that it breached

a standard of care are, Mottern says, unnecessary.

We agree with BHS's position. The original provisions of the AMLA

were adopted in 1975. See § 6-5-48 et seq.; Fletcher v. Health Care Auth.

of Huntsville, 344 So. 3d 347, 349 n.2 (Ala. 2021). The AMLA was later

6
SC-2024-0148

supplemented by the Alabama Medical Liability Act of 1987 ("the 1987

Act"), which was codified at § 6-5-540 et seq. See § 6-5-541; Fletcher, 344

So. 3d at 349 n.2. The AMLA was supplemented again by the Alabama

Medical Liability Act of 1996 ("the 1996 Act"), which amended certain

provisions of the 1987 Act and added § 6-5-549.1, Ala. Code 1975. In the

1987 Act, the Legislature expressly recognized an "increasing threat of

legal actions for alleged medical injury" that was causing "a crisis

threaten[ing] the delivery of medical services to the people of Alabama."

§ 6-5-540. According to the Legislature, that threat "contributes to an

increase in health care costs and places a heavy burden upon those who

can least afford such increases." Id. The Legislature also determined

that, it "result[s] in a limitation on the number of physicians providing

specialized health care in this state." Id. The Legislature reiterated

those concerns in the 1996 Act. See § 6-5-549.1

One of the primary purposes of the AMLA is to define the standard

of care that health-care providers owe in treating their patients. George

H. Lanier Mem'l Hosp. v. Andrews, 901 So. 2d 714, 720 (Ala. 2004).

Section 6-5-484(a), Ala. Code 1975, which is part of the AMLA as

originally adopted in 1975, provides that, "[i]n the case of a hospital

7
SC-2024-0148

rendering services to a patient, the hospital must use that degree of care,

skill, and diligence used by hospitals generally in the community." As

part of the 1987 Act, the Legislature expressly defined the standard of

care for health-care providers, including hospitals, as "that level of such

reasonable care, skill, and diligence as other similarly situated health

care providers in the same general line of practice[] ordinarily have and

exercise in like cases." § 6-5-542(2). "A breach of the standard of care is

a failure by a health care provider to comply with the standard of care,

which failure proximately causes personal injury or wrongful death." Id.

Such a breach must be established through substantial evidence. §§ 6-5-

548 and 6-5-549.

BHS asserts that the very purpose of the AMLA is to regulate

actions for "medical injury," that a medical injury is harm occurring from

the provision of medical care, that a medical injury is precisely what

occurred when BHS administered TPN to Lavonne, and that Lavonne's

medical injury forms the basis of all of Mottern's claims. Thus, BHS says,

this is the type of action, regardless of how it is denominated, that the

Legislature had in mind when it acknowledged, and undertook efforts to

8
SC-2024-0148

curb, the "crisis" caused by the threat of litigation against health-care

providers.

For his part, Mottern points to cases indicating that the AMLA does

not limit plaintiffs to only one theory of liability. For example, Mottern

cites Collins v. Ashurst, 821 So. 2d 173 (Ala. 2001), in which the plaintiff

alleged trespass and assault and battery against a surgeon who allegedly

had removed the wrong ovary from the plaintiff's body. This Court held

in Collins that the trial court had erred in striking the plaintiff's claims

alleging trespass and assault and battery because the AMLA does not

limit a plaintiff to "only one cause of action." Id. at 177. See also Mobile

Infirmary v. Delchamps, 642 So. 2d 954 (Ala. 1994) (involving AEMLD

and UCC breach-of-warranty claims against a hospital that had placed

allegedly defective temporomandibular implants in the plaintiff's jaw).

Both Collins and Delchamps, however, indicate that the AMLA did

indeed apply to the plaintiffs' theories of liability in those cases. In

deciding that the AMLA does not limit a plaintiff to one theory of liability,

the Court in Collins noted that "this Court has accepted other causes of

action, distinct from medical malpractice, as being governed by the

AMLA," and quoted Mock v. Allen, 783 So. 2d 828, 832 (Ala. 2000), which,

9
SC-2024-0148

in turn, cited and discussed precedent applying the AMLA to various

theories of liability, including AEMLD and UCC breach-of-warranty

claims. 821 So. 2d at 176-77. In Delchamps, the plaintiff, Tonya

Delchamps, alleged that the temporomandibular implants that had been

placed in her jaw at Mobile Infirmary Hospital were defective and had

caused her to suffer bone degeneration. Her allegations against the

hospital included a claim under the AEMLD, breach-of-warranty claims

under the UCC, and a claim alleging negligence in the design,

manufacture, and sale of the implants. Mobile Infirmary asserted that

all the claims were barred by the statute of limitations set out in the

AMLA, § 6-5-482, Ala. Code 1975. This Court agreed, reasoning as

follows:

"Looking to the substance of the claims alleged in
Delchamps's complaint, we hold that the limitations
provisions of § 6-5-482 govern all of those claims. Section 6-5-
482 is broad; it applies to all actions alleging 'liability' as well
as 'error, mistake, or failure to cure, whether based on
contract or tort.' This language encompasses contract claims
alleging breach of express and implied warranties, as well as
tort claims alleging liability under the AEMLD and alleging
negligence in the design, manufacture, sale, or distribution of
a product and negligence in the failure to warn of dangers
associated with its use. Further, although Delchamps urges
this Court to view the relationship between her and the
defendant in all of its 'complexity' and not to reduce it in
procrustean fashion to a relationship of patient-physician or
10
SC-2024-0148

patient-health care provider, the relationship between them
is unquestionably one of patient and health care provider. The
act that forms the basis of Delchamps's AEMLD, negligence,
and warranty claims not only occurred during the course of
her treatment, but also constituted the very medical
treatment she sought from Mobile Infirmary."

642 So. 2d at 957-58. Likewise, in the present case, the act that forms

the basis of Mottern's AEMLD and UCC breach-of-warranty claims

occurred during the course of the treatment Lavonne sought from BHS.

Although Mottern does not dispute that his AEMLD and UCC

breach-of-warranty claims are governed by the AMLA to an extent, he

claims that only the AMLA's "procedural provisions" apply. He suggests

that such provisions include, among others, the statute of limitations set

out in § 6-5-482 and the strict pleading requirements and limitations on

discovery set out in § 6-5-551. In other words, he suggests that AMLA

provisions that are more "procedural" in nature, which presumably are

aimed at the same "crisis" that prompted the Legislature to impose a

particular standard of care, apply, while the more substantive standard-

of-care provisions themselves do not.

The issue of the applicability of the standard-of-care provisions set

forth in the AMLA simply was not raised in Delchamps. The opinion in

Collins, however, appears to suggest that the plaintiff's assault-and-
11
SC-2024-0148

battery and trespass claims would be subject to the AMLA's standard-of-

care provisions. In determining that the AMLA did not preclude the

plaintiff's theories, the Court said:

"[W]e note that the AMLA recognizes the possibility that more
than one type of action may be brought under that act.
Specifically, the definitions section, § 6-5-542, which the trial
court interpreted to allow only one cause of action, i.e.,
medical malpractice, states, in pertinent part, that '[t]his
definition [for "standard of care"] applies to all actions for
injuries or damages or wrongful death whether in contract or
tort and whether based on intentional or unintentional
conduct.' (Emphasis added.) Thus, the AMLA envisions both
tort claims and contract claims, based on either intentional or
unintentional conduct. This particular section provides the
applicable standard of care that governs all actions against
the health-care providers specified in the act; it does not
contain language that would lead to the conclusion that the
only available cause of action, in contract or in tort, is medical
malpractice."

821 So. 2d at 176 (final emphasis added). It is worth noting that the

United States District Court for the Southern District of Alabama

suggested that the standard-of-care provisions of the AMLA apply to all

theories of liability that involve medical injury arising out of the

provision of medical care. See M.D.P. v. Houston Cnty. Health Care

Auth., 821 F. Supp. 2d 1295, 1301-02 (M.D. Ala. 2011) (ruling that, based

on Collins, the plaintiffs could pursue a contract claim that arose out of

the same medical care that underlied their tort-based claims, but noting
12
SC-2024-0148

that the "issue may well turn out to be academic" because "[t]he standard

of proof, standard of care, discovery, complaint requirements, statute of

limitations, and qualifications to give expert testimony are all the same

for both contract and tort actions under the clear language of applicable

sections of the AMLA"). Certainly nothing in Collins indicates that the

plaintiff in that case did not have to prove her claims by establishing that

the defendant health-care provider had breached the applicable standard

of care as defined by the AMLA.

In adopting provisions of the AMLA, along with recognizing the

"crisis" caused by the "increasing threat of legal actions for alleged

medical injury," see §§ 6-5-540 and 6-5-549.1; defining the standard of

care applicable in actions alleging medical injuries; and adopting strict

pleading requirements and limitations on discovery, the Legislature also

placed the burden on plaintiffs to prove a breach of the standard of care

through "substantial evidence," defined "similarly situated health care

provider," and declared that health-care providers can testify as expert

witnesses against other health-care providers only if the witnesses are

similarly situated to the defendant health-care provider. §§ 6-5-548 and

6-5-549. Those definitions and restrictions apply to all medical-liability

13
SC-2024-0148

actions, regardless of whether they are based on intentional or

unintentional conduct and regardless of whether they are based on tort

or contract principles. §§ 6-5-542(2), 6-5-548, and 6-5-549.

In Ex parte Vanderwall, 201 So. 3d 525 (Ala. 2015), a former patient

of a physical therapist alleged that she had been sexually assaulted by

the therapist during a physical-therapy session. She brought an action

alleging assault and battery against the physical therapist, who objected

to some of the plaintiff's discovery requests on the ground that they were

prohibited by the AMLA. On mandamus review, this Court held that the

plaintiff's claims were not subject to the AMLA, regardless of whether

the acts underlying the action were committed by a health-care provider

during an appointment for medical care, because the gist of the action

was not to recover for a medical injury. In doing so, the Court abrogated

the interpretation of the AMLA espoused in Mock v. Allen, 783 So. 2d 828

(Ala. 2000), and O'Rear v. B.H., 69 So. 3d 106 (Ala. 2011), both of which

had involved claims alleging sexual misconduct against health-care

providers that occurred while they were supposed to be providing medical

care and both of which had held that the AMLA applied to those claims.

The Court in Vanderwall noted that, "under the interpretation of the

14
SC-2024-0148

AMLA enunciated in Mock and reiterated in O'Rear, [the plaintiff's]

allegation of sexual misconduct would be governed by the proof

requirements of the AMLA." 201 So. 3d at 536. In considering and

rejecting the idea that the AMLA (which includes "proof requirements")

applied to an alleged sexual assault, the Court in Vanderwall indicated

that the AMLA applies to "actions in which the alleged injury occurred

because of medical treatment." 201 So. 3d at 537. The Court stated as

follows:

" ' "The Legislature declared that it enacted
the AMLA in response to increasing health-care
costs caused by 'the increasing threat of legal
actions for alleged medical injury.' Ala. Code 1975,
§ 6-5-540. The AMLA applies to actions against a
health-care provider alleging a 'breach of the
standard of care.' Ala. Code 1975, § 6-5-540 et seq.
A breach of the standard of care is the 'fail[ure] to
exercise such reasonable care, skill and diligence
as other similarly situated health care providers in
the same general line of practice, ordinarily have
and exercise in a like case.' § 6-5-548. Thus, the
AMLA applies to conduct that is, or that is
reasonably related to, the provision of health-care
services allegedly resulting in a medical injury.
…" '

"Mock, 783 So. 2d at 836-37 (Lyons, J., dissenting) (emphasis
added). See also Ex parte Addiction & Mental Health Servs.,
Inc., 948 So. 2d 533, 535 (Ala. 2006) (' "By definition, a
'medical-malpractice action' is one for redress of a 'medical
injury.' See § 6-5-540 (purpose of the [AMLA] is to regulate
15
SC-2024-0148

actions for 'alleged medical injury')...." ' (quoting Taylor v.
Smith, 892 So. 2d 887, 893 (Ala. 2004))).

"From the foregoing, it is clear that the AMLA is not just
concerned with who committed the alleged wrongful conduct
or when and where that conduct occurred, but also with
whether the harm occurred because of the provision of
medical services."

201 So. 3d at 537 (the quoted portion of Justice Lyons's dissent in Mock

is quoting a dissenting opinion authored by Justice See on original

submission in Mock, which was withdrawn on rehearing as a result of

Justice See's recusal). According to the Court in Vanderwall, "sexual

misconduct by a health-care provider toward a patient is not medical

treatment, and it does not result in a 'medical injury' as such an injury is

understood under the AMLA." 201 So. 3d at 540. Although the Court in

Vanderwall rejected the idea that a sexual assault can be the basis of a

claim alleging a medical injury that is subject to the AMLA's "proof

requirements," it did not reject the idea that theories of liability that are

indeed based on medical injuries resulting from the provision of medical

treatment are subject to those proof requirements.

Although neither party in the present case discusses Houston

County Health Care Authority v. Williams, 961 So. 2d 795, 811 (Ala.

2006), that case is at least worth noting. In Williams, the Court
16
SC-2024-0148

considered whether an action had been properly certified as a class

action. The plaintiffs in Williams alleged that they had been exposed to

potential or actual fungal infections when receiving breast implants at a

surgery center. There was evidence indicating that the saline used to fill

the implants had been contaminated with fungal spores.

"Against [the surgery center] the plaintiffs asserted
claims labeled 'breach of implied warranty'; 'medical
malpractice'; 'AEMLD,' i.e., a claim under the Alabama
Extended Manufacturer's Liability Doctrine for allegedly
providing defective products unreasonably dangerous for the
use for which they were intended; 'premises liability'; 'duty to
warn'; 'suppression'; 'res ipsa loquitur'; and 'class action
complaint[]' …."

961 So. 2d at 803. In considering whether the plaintiffs' claims satisfied

the "predominance" requirement of class certification, the Court noted

the necessity of considering the substantive law of the plaintiff's claims,

including "the proof that the plaintiffs must present to establish each

element." Id. at 810. The Court then concluded that, "[b]ecause the

plaintiffs allege a 'medical injury' arising in the context of their patient-

hospital relationship as the basis for each of their claims, see Ex parte

Addiction & Mental Health Servs., Inc., 948 So. 2d 533 (Ala. 2006), all

the claims are governed by the [AMLA]." Id. (emphasis added).

Immediately thereafter, the Court quoted the requirement in the AMLA
17
SC-2024-0148

that claims be supported by evidence showing a breach of the standard

of care set out in the AMLA. Id. Additionally, after discussing whether

and how each plaintiff had been injured and therefore had or lacked

"standing" to sue, the Court considered the elements of each individual

theory of liability, but led with the following proposition:

"[W]e look to see if those plaintiffs with standing carried their
burden of proving that, with respect to this potential class,
common questions of law or fact predominate over individual
issues. To that end, we consider the elements of certain of the
claims included within the certified class action. To prove
their claim specifically labeled as one for medical malpractice,
as well as all of their other differently denominated claims,
the plaintiffs must prove a breach of the standard of care. See,
e.g., Ala. Code 1975, § 6-5-548(a)."

961 So. 2d at 812-13. Neither party in this case cites Williams or explains

why it is or is not relevant here.

More recently, in Jackson Hospital & Clinic, Inc. v. Murphy, 343

So. 3d 490 (Ala. 2021), the Court considered an action against Jackson

Hospital & Clinic, Inc. ("Jackson Hospital"), brought by a former patient

after a piece of a "glidewire" used in connection with kidney-stone surgery

had broken off in the plaintiff's bladder. Id. at 492. One of the issues on

appeal was whether the plaintiff, Cameron Murphy, had sufficiently

pleaded a "defective-equipment claim" against Jackson Hospital and, if

18
SC-2024-0148

so, whether he had presented sufficient evidence in support of such a

claim. In determining that Murphy had not satisfied his burden of proof,

the Court assumed that he had sufficiently pleaded his defective-

equipment claim and stated as follows:

"This Court has previously concluded that a claim that
a hospital has provided defective equipment during the course
of medical treatment sought from the medical provider is a
claim governed by the provisions of the AMLA. See Mobile
Infirmary v. Delchamps, 642 So. 2d 954, 957 (Ala. 1994).
Thus, even assuming, as Murphy argues, that a claim related
to Jackson Hospital's provision of defective equipment was
adequately pleaded in Murphy's complaint, to successfully
prove that claim and recover against Jackson Hospital,
Murphy was required to demonstrate that Jackson Hospital,
in connection with the furnishing of that equipment, breached
the applicable standard of care. See § 6-5-548(a), Ala. Code
1975 ('In any action for injury or damages ... against a health
care provider for breach of the standard of care, the plaintiff
shall have the burden of proving by substantial evidence that
the health care provider failed to exercise such reasonable
care, skill, and diligence as other similarly situated health
care providers in the same general line of practice ordinarily
have and exercise in a like case.'). See also, e.g., Anderson v.
Alabama Reference Lab'ys, 778 So. 2d 806, 811 (Ala. 2000),
and Allred v. Shirley, 598 So. 2d 1347, 1350 (Ala. 1992). The
AMLA defines '[s]tandard of care' as 'that level of such
reasonable care, skill, and diligence as other similarly
situated health care providers in the same general line of
practice, ordinarily have and exercise in like cases.' § 6-5-
542(2), Ala. Code 1975. It defines '[a] breach of the standard
of care' as 'the failure by a health care provider to comply with
the standard of care ....' Id."

343 So. 3d at 498-99.
19
SC-2024-0148

Mottern relies heavily on Skelton v. Druid City Hospital Board,

459 So. 2d 818 (Ala. 1984), which was decided before the 1987 Act was

adopted, in which this Court held that a former patient of a hospital could

maintain a claim alleging that the hospital had impliedly warranted that

a suturing needle that broke off in the patient's body was fit for its

intended purpose. The Court rejected the hospital's arguments that it

had provided only a "service" to the patient and not a "good" and that the

suturing needle was simply equipment that was used incidentally to the

provision of medical care. The Court reviewed cases involving " 'mixed'

or 'hybrid' agreements, those that involve both a sale of goods and a

rendering of services" and determined that the fact that the hospital had

provided a service in using the suturing needle was not dispositive. 459

So. 2d at 821-22. In addition, the Court determined that the defendant's

status as a hospital did not mean that it could not be a "seller" of goods

under the UCC. Id. at 822-23. But the Court in Skelton did not hold that

the AMLA, including its provisions regarding the standard of care, were

irrelevant to the plaintiff's claims. Indeed, there was absolutely no

mention in Skelton of the AMLA or of any standard of care that might

apply. For all that appears from the opinion, the issue simply was not

20
SC-2024-0148

raised. As BHS states in its brief to this Court, "whatever relevance

Skelton has to when UCC warranties attach to a transaction between a

health care provider and a patient, it has nothing to say on whether

liability for the breach of such warranties requires proof that the health

care provider violated the applicable standard of care." BHS's brief at 33.

"By definition, a 'medical-malpractice action' is one for redress of a

'medical injury.' See § 6-5-540 (purpose of the [AMLA] is to regulate

actions for 'alleged medical injury') …." Taylor v. Smith, 892 So. 2d 887,

893 (Ala. 2004) (plurality opinion). The AMLA applies to "any action for

injury, damages, or wrongful death, whether in contract or in tort,

against a health care provider for breach of the standard of care." § 6-5-

551 (emphasis added). Regardless of the theory of liability alleged, "it is

the substance of an action -- rather than its form -- that determines

whether the AMLA applies." Ex parte Huntsville Emergency Med.

Servs., Inc., 372 So. 3d 538, 543 (Ala. 2022). The AMLA is "concerned

with … whether the harm occurred because of the provision of medical

services." Vanderwall, 201 So. 3d at 537. "Medical services" are those

that are provided for "therapeutic or medical reason[s]." Id. at 538.

21
SC-2024-0148

In adopting the original provisions of the AMLA in 1975, the

Legislature declared that hospitals and other medical providers are not

to be considered "insurer[s] of the successful issue of treatment or

service." § 6-5-484(b). Holding BHS liable without consideration of the

applicable standard of care is a move in the direction of treating health-

care providers as insurers. Considering that principle and the rest of the

AMLA, including its expressly stated purpose of mitigating the crisis

caused by the threat of litigation against health-care providers for

medical injuries caused by acts and omissions occurring as part of the

provision of medical services, it is clear that the AMLA, including its

standard-of-care provisions, applies to all of Mottern's claims.

Under our precedent, Mottern is entitled to assert various theories

of liability against BHS, a health-care provider, including alleging claims

under the AEMLD and breach-of-warranty claims under the UCC. But

those claims are subject to the AMLA, including its standard-of-care

provisions. With that caveat, the trial court's judgment is reversed, and

the matter is remanded for further proceedings consistent with this

opinion.

22
SC-2024-0148

REVERSED AND REMANDED.

Wise and Mendheim, JJ., concur.

Mitchell, J., concurs in the result, with opinion, which Parker, C.J.,

joins.

Cook, J., concurs in the result, with opinion, which Stewart, J.,

joins.

Shaw, J., dissents, with opinion, which Bryan, J., joins.

23
SC-2024-0148

MITCHELL, Justice (concurring in the result).

I agree with the Court's holding that the trial court's judgment

dismissing the four claims against Baptist Health System, Inc. ("BHS"),

d/b/a BMC - Princeton Medical Center, should be reversed. I disagree,

however, with the reasoning employed by the main opinion. As explained

below, I believe the plaintiff, Donald J. Mottern, as administrator of the

Estate of Lavonne S. Mottern, deceased, adequately pleaded all four

counts.

I.

With respect to Counts I and II -- Mottern's traditional medical-

malpractice claims -- the main opinion reverses the trial court's judgment

of dismissal because "BHS 'agrees with Mr. Mottern that the trial court's

order dismissing [those claims] should be reversed.' " ___ So. 3d at ___

(quoting BHS's brief at 14). In my view, the bare fact of the parties'

agreement is not enough to justify reversal. As we have often explained,

an appellate court can "affirm the judgment of the trial court if that

judgment is supported by any valid legal ground, even if that ground was

not argued" on appeal. Ex parte CTB, Inc., 782 So. 2d 188, 191 (Ala.

2000). Accordingly, "the fact that an appellee concedes that a reversal is

24
SC-2024-0148

required, or does not defend a trial court's judgment, does not always

mean that this Court must reverse that decision." Zinn v. Till, 380 So.

3d 1026, 1029-30 (Ala. 2023) (Shaw, J., concurring in the result); see also

id. at 1030 (Mitchell, J., joined by Parker, C.J., and Bolin, J., concurring

in the result) (agreeing with Justice Shaw that appellees cannot change

the law by stipulation and emphasizing that "the fact that the parties

agree on a point of law does not establish that the point is correct"). I

would reverse the trial court's judgment of dismissal on Counts I and II

based on the law itself -- not on the parties' "agree[ment]" about the law.

When we analyze the issue based on the law itself, the outcome is

the same. As the main opinion notes, the trial court dismissed Counts I

and II on its own initiative, based on its view that those counts were not

pleaded with the specificity required by § 6-5-551, Ala. Code 1975. Section

6-5-551 requires a medical-malpractice complaint to include "a detailed

specification and factual description of each act and omission alleged by

plaintiff to render the health care provider liable to plaintiff and shall

include when feasible and ascertainable the date, time, and place of the

act or acts."

25
SC-2024-0148

The complaint here readily satisfies that standard: it describes the

challenged conduct (the procurement and administration of

contaminated TPN), the place (BHS's hospital) and time (March 10-14,

2011) at which that conduct took place, and the resulting harm (death).

The trial court's judgment does not give -- and I am not aware of -- any

reasons for concluding that the complaint fails under § 6-5-551.

Even if the complaint did lack some necessary detail, the trial court

gave no reason for refusing to give Mottern a chance to amend his

complaint to include the omitted information. That refusal likely

exceeded the trial court's discretion in this context, because this case had

been litigated for 13 years based on the parties' shared assumption that

all four counts were adequately pleaded and because the defendants --

both expressly and via their conduct throughout the litigation --

consented to the adequacy of the notice of the claims against them. See

Gulf Coast Realty Co. v. Professional Real Est. Partners, Inc., 926 So. 2d

992, 1002-03 (Ala. 2005) (quoting Rule 15(a), Ala. R. Civ. P., and

explaining that this Court reviews a trial court's refusal to allow a party

to amend a complaint for an abuse of discretion).

26
SC-2024-0148

I would reverse the trial court's judgment on Counts I and II on

these bases, rather than on the bare fact of BHS's agreement that the

judgment should be reversed.

II.

Turning to Counts III and IV -- Mottern's product-liability claims

-- the main opinion concludes that Mottern can prevail on those claims

only if he pleads and proves: (1) all the traditional elements of a product-

liability claim and (2) that BHS breached a medical standard of care. The

main opinion then goes on to reverse, without explanation, the trial

court's judgment dismissing Mottern's product-liability claims.

Respectfully, I do not understand how the main opinion's judgment

follows from its analysis. If it is true -- as BHS argues and as the main

opinion apparently concludes -- that Mottern was required to plead

breach of the standard of care with respect to his product-liability claims

and failed to do so, then it would seem that the trial court's judgment of

dismissal with respect to those two counts should be affirmed. But the

main opinion instead reverses and remands, with no explanation as to

how or why the trial court erred. I believe a different approach is

required.

27
SC-2024-0148

A.

I would begin by addressing the primary reason for dismissal given

by the trial court, which is that -- in the trial court's view -- BHS was "not

a seller" of TPN. The trial court reasoned that BHS "primarily provided

services to the deceased…, rather than goods," and therefore did not

qualify as a "seller" capable of liability under either the manufacturing-

defect claim (Count III) or the breach-of-warranty claim (Count IV).

(Emphasis added.) Accordingly, the trial court dismissed both of the

product-liability counts against BHS.

The trial court's reasoning on this point may appear sound at first

blush, but, as Mottern points out, it is foreclosed by this Court's

precedent. In Skelton v. Druid City Hospital Board, 459 So. 2d 818 (Ala.

1984), this Court held that hospitals supplying physical materials (in

that case, a suturing needle) as part of medical procedures are "sellers"

of those products for purposes of product-liability actions. Under

Skelton's logic, BHS's administration of TPN counts as the "sale" of TPN

sufficient to support Mottern's product-liability claims.

The Business Council of Alabama ("BCA") has filed an amicus brief

arguing that the Skelton Court manifestly erred in treating hospitals as

28
SC-2024-0148

"sellers" of "goods" and urging our Court to overrule that holding. In my

view, the BCA makes several compelling arguments in support of its

request. But because the request to overrule that aspect of Skelton's

holding was raised for the first time by an amicus and has not been the

subject of fulsome adversarial briefing by the parties, 2 I would not grant

that request at this stage. 3 See State ex rel. Baxley v. Johnson, 293 Ala.

69, 74, 300 So. 2d 106, 110 (1974). I would, however, give serious

consideration to such a request if it were raised by the parties in a

subsequent appeal.

Because the trial court's determination that BHS was not a "seller"

conflicts with Skelton, we must consider whether there is another

2BHS does argue that Skelton should be overruled to the extent it

does not include a "breach of medical duty" requirement. But BHS's brief
does not ask the Court to overrule Skelton's holding that hospitals are
"sellers" of the medical equipment that they use in treating patients. See
BHS's brief at pp. 43-46.

3In his reply brief, Mottern argues that, even if this Court did
overrule Skelton at the BCA's urging, BHS's administration of TPN
would nonetheless qualify as a "sale" of a "good" because: (1) Alabama
law provides that, for purposes of the implied warranty of
merchantability, "the serving for value of food or drink to be consumed
either on the premises or elsewhere is a sale," § 7-2-314(1), Ala. Code
1975 (emphasis added), and (2) TPN is a type of "food." This argument,
too, lacks the benefit of adversarial briefing and illustrates why the Court
should not attempt to resolve the Skelton issue at this stage.
29
SC-2024-0148

justification for affirming the trial court's judgment of dismissal as to

Counts III and IV. See Ex parte CTB, Inc., 782 So. 2d at 191. Here, there

are two plausible arguments that could be made in support of the trial

court's judgment. As explained below, I don't believe either argument

can ultimately succeed.

B.

The first alternative basis for affirmance -- which was contemplated

by the trial court itself -- would be to hold that Counts III and IV were

not pleaded with the level of specificity required by § 6-5-551. As

explained above, however, I believe that the complaint was pleaded with

specificity. And, even if it had not been adequately pleaded, Mottern

should have been given leave to amend. This first alternative basis is

thus, in my view, insufficient to support the trial court's judgment.

C.

The second alternative basis for affirmance would be to conclude --

as the main opinion does -- that the Alabama Medical Liability Act, Ala.

Code 1975, § 6-5-480 et seq. and § 6-5-540 et seq., requires all claims

stemming from a medical injury to allege that the defendant breached a

medical "standard of care." If that were true, then Mottern's product-

30
SC-2024-0148

liability claims would fail unless those claims also alleged that BHS

breached the standard of care.

This second alternative is also insufficient -- for the simple reason

that Mottern's complaint does allege that BHS violated the standard of

care. The complaint specifically alleges that BHS "did not possess and

exercise reasonable care, skill and diligence with regard to the …

furnishing, providing, and administration of the TPN solution" and that

BHS "[n]egligently sold, furnished, provided [and] administered an

unpure, adulterated, and contaminated TPN solution[]" to Lavonne. So

even if Mottern were required to plead breach of a medical standard of

care, his complaint satisfies that requirement.

III.

I would reverse the trial court's judgment of dismissal and remand

the case for trial. If another appeal is taken after trial, I urge the parties

to use that opportunity to address the question whether this Court's

decision in Skelton is due to be overruled for the reasons given in the

BCA's amicus brief.

Parker, C.J., concurs.

31
SC-2024-0148

COOK, Justice (concurring in the result).

The main opinion is clearly correct that we must reverse the

Jefferson Circuit Court's dismissal of Counts I - IV of the complaint filed

by Donald J. Mottern, as administrator of the estate of Lavonne S.

Mottern, deceased. However, because the main opinion's discussion of the

applicability of the standard-of-care provisions in the Alabama Medical

Liability Act ("the AMLA"), Ala. Code 1975, § 6-5-480 et seq. and § 6-5-

540 et seq., is dicta, I concur only in the result.

The only issue at stake in this appeal is whether the trial court

could have properly dismissed Mottern's claims on the ground that they

were not pleaded with sufficient specificity to satisfy the AMLA. On the

eve of trial, and only with respect to Counts III and IV of Mottern's

complaint (the product-liability claims under the Alabama Extended

Manufacturer's Liability Doctrine and the Uniform Commercial Code,

Ala. Code 1975, § 7-3-101 et seq.), Baptist Health Systems, Inc. ("BHS"),

d/b/a BMC - Princeton Medical Center, filed a motion in limine asking for

the "exclusion of any evidence of a breach in the standard of care that has

not been specifically pled."

32
SC-2024-0148

Then, after trial was set to begin in this case, the trial court sua

sponte dismissed all four counts of Mottern's complaint on the ground

that they were not pleaded with the necessary specificity. 4 Importantly,

the operative complaint in this case had been filed 13 years earlier. In

the time since, BHS had filed no motions directed at the sufficiency of the

allegations in that complaint. BHS also did not request the dismissal of

Counts I and II. Even on appeal, BHS agrees that the dismissal of those

two counts should be reversed.

Although BHS does argue on appeal that the trial court properly

dismissed Counts III and IV for failure to sufficiently plead those claims

under the AMLA, it waived any such challenges to the sufficiency of the

pleadings when it filed its answer to the complaint on May 11, 2011. See

1 Gregory C. Cook, Alabama Rules of Civil Procedure Annotated, Rule 8,

note 10, p. 261 (5th ed. 2018) ("Party who fails to timely raise issue of

failure to plead with particularity normally waives that requirement.");

4It might be argued that the trial court's judgment was not final

given its use of the word "interlocutory." One reading of the trial court's
judgment could be that the trial court intended to certify legal questions
to this Court under Rule 5, Ala. R. App. P. However, it appears to me
that the trial court's judgment expressly dismisses all counts against
BHS and, therefore, it is not an "interlocutory" order.
33
SC-2024-0148

see also Sanders v. Mullins, 579 So. 2d 1349, 1350 (Ala. Civ. App. 1990)

("The time for raising [the issue of failure to plead with particularity] was

in the pretrial pleadings."); Broadleaf, Inc. v. Pierce, 445 So. 2d 308, 310

(Ala. Civ. App. 1984) ("[T]his court notes that a party who fails to timely

raise the issue of failure to plead with particularity normally waives that

requirement."); 2 James W. Moore, Moore's Federal Practice ¶ 9.03[5] (3d

ed. 2014) ("If the failure to plead with particularity under Rule 9(b)[, Fed.

R. Civ. P.,] is not raised in the first responsive pleading or in an early

motion, the issue will be deemed waived."); In re General Motors LLC

Ignition Switch Litig., 154 F. Supp. 3d 30, 41 (S.D.N.Y. 2015)

("[Defendant's] reliance on Rule 9(b)[, Fed. R. Civ. P.] -- which establishes

a heightened pleading standard for fraud -- is misplaced at the summary

judgment stage and on the eve of trial." (citing USA Certified Merchs.,

LLC v. Koebel, 262 F. Supp. 2d 319, 333 (S.D.N.Y. 2003))). 5 Moreover,

BHS did not even file a motion requesting dismissal or summary

5The waiver of the issue whether the plaintiff pleaded with
sufficient particularity would not, of course, affect the defendant's ability
to move for a summary judgment based upon, for instance, the alleged
insufficiency of the evidence to support an AMLA claim. Moreover, BHS
did not even file a motion seeking dismissal or summary judgment as to
Counts III and IV. Thus, the trial court's dismissal of those claims was
improper and must be reversed.
34
SC-2024-0148

judgment as to Counts III and IV. Thus, the trial court's dismissal of

those claims was improper and must be reversed.

The main opinion, however, goes further and purports to decide

whether the AMLA's standard-of-care provisions apply to Counts III and

IV. There is simply no reason for us to reach this question today. The

applicability of the AMLA's standard-of-care provisions has no bearing

on our decision to reverse the trial court's dismissal of all of Mottern's

claims. Because the main opinion's discussion of this issue is not

necessary to the result, I cannot join the opinion as written and concur

only in the result. 6

6I observe that, upon remand, a trial may occur and, if so, the trial

court will need to instruct the jury on the law applicable to Counts III
and IV. Given the unresolved legal issues discussed above, it is possible
that, without carefully worded instructions on those counts, a general
verdict could result -- thereby leading to a "good count/bad count"
problem. See, e.g., Complete Cash Holdings, LLC v. Powell, 239 So. 3d
550, 559-60 (Ala. 2017) (" ' "When a jury returns a general verdict upon
two or more claims, as it did here, it is not possible for this Court to
determine which of the claims the jury found to be meritorious.
Therefore, when the trial court submits to the jury a 'good count' -- one
that is supported by the evidence -- and a 'bad count' -- one that is not
supported by the evidence -- and the jury returns a general verdict, this
Court cannot presume that the verdict was returned on the good count." ' "
(quoting Larrimore v. Dubose, 827 So. 2d 60, 63 (Ala. 2001), quoting in
turn Alfa Mut. Ins. Co. v. Roush, 723 So. 2d 1250, 1257 (Ala. 1998))). In
such a case, a judgment entered upon the verdict must be reversed. I
35
SC-2024-0148

Stewart, J., concurs.

therefore suggest that the parties and the trial court carefully consider a
jury-verdict form to address such concerns.
36
SC-2024-0148

SHAW, Justice (dissenting).

There are four counts in the complaint in this case against Baptist

Health System, Inc. ("BHS"), d/b/a BMC - Princeton Medical Center:

Count I, alleging negligence; Count II, alleging wantonness; Count III,

alleging liability under the Alabama Extended Manufacturer's Liability

Doctrine ("the AEMLD"); and Count IV, alleging breach of an implied

warranty under the Uniform Commercial Code, Ala. Code 1975, § 7-3-

101 et seq. The trial court's order from which this appeal purportedly

arises, which is titled "Order Certifying Counts One, Two, Three and

Four for an Interlocutory Appeal," does not appear to dismiss those

counts. Instead, using the language of Rule 5, Ala. R. App. P., the trial

court found "controlling question[s] of law as to which there is substantial

ground for difference of opinion," "that an immediate appeal from the

Order would materially advance the ultimate termination of the

litigation on these issues," and that an "appeal would avoid protracted

and expensive litigation." 7 The questions the trial court posed are as

follows:

7Rule 5(a), Ala. R. App. P., provides, in part:

37
SC-2024-0148

"Does the failure of the Plaintiff to specifically plead in
a timely manner the allegations regarding [Counts I and II],
some of which are contained within Plaintiff's Rule 26[, Ala.
R. Civ. P.,] Expert Disclosure but not included with specificity
within Plaintiff's Complaint(s), subject the herein
Complaint(s) to dismissal when timely amendments to the
Complaint(s) were not made within ninety (90) days before
trial, contrary to the language set forth in [§ 6-5-551, Ala.
Code 1975]?

"Is [BHS] a seller or a merchant and do the causes of
action for AEMLD (Count [III]) and Breach of Implied
Warranties (Count [IV]) lie against Defendant [BHS] under
the circumstances pleaded in the Plaintiff's Complaints?" 8

"A petition to appeal from an interlocutory order must
contain a certification by the trial judge that, in the judge's
opinion, the interlocutory order involves a controlling
question of law as to which there is substantial ground for
difference of opinion, that an immediate appeal from the order
would materially advance the ultimate termination of the
litigation, and that the appeal would avoid protracted and
expensive litigation."

8The trial court stated that Counts I and II "are subject to
dismissal" and that Counts III and IV "are due to be dismissed," but the
trial court clearly attempted to certify a Rule 5 interlocutory appeal. I
see no need to recount the numerous aspects of the order indicating that
apparent intent, other than to note its title; that the trial court "certified"
questions for an "interlocutory appeal"; that the trial court stated several
times that it was granting permission to appeal; and that the trial court
otherwise does not state that the counts were dismissed. If this order
dismisses of all four counts -- and is, therefore, a final judgment -- then
there would be no need for the trial court to attempt to utilize the
language of Rule 5, grant permission to appeal, or refer to the order as
"interlocutory." Cf. Rule 58(b), Ala. R. Civ. P. ("A written order or a
judgment will be sufficient if it ... indicates an intention to adjudicate,
38
SC-2024-0148

I would deny permission to appeal the first question, which is not a

controlling question of law. Instead, it involves the application of the law,

here § 6-5-551, Ala. Code 1975, to the relevant counts as pleaded in the

complaint. I believe the second question poses an interesting issue that

perhaps should be addressed by this Court, given that the trial court, in

its order, stated that it found that BHS was "not a seller … or a merchant"

for purposes of Counts III and IV; thus, it appears that the trial court is

poised to dismiss those counts on that basis.

Bryan, J., concurs.

considering the whole record, and if it indicates the substance of the
adjudication.").

39