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McCullar v. Winston County Chiropractic Clinic3/16/2001
Dr. Constantina R. Boshell is a defendant in an action filed in the Walker Circuit Court. She petitions for a writ of mandamus directing Judge John L. Madison to vacate his September 19, 2000, order transferring that case from Walker County to Winston County. The petition is denied.
On March 24, 2000, Barbara McCullar, a Winston County resident, filed an action alleging medical malpractice and naming as defendants Dr. Boshell; Dr. Boshell's clinic, named in the complaint as "Boshell Clinic, Inc."; and certain fictitiously named defendants. The complaint alleged that Dr. Boshell had treated McCullar on December 8, 9, and 10, 1999, at her clinic in Walker County; that in the treatment she had breached the standard of care applicable to chiropractors; and that, as a result of the breach, McCullar had suffered various injuries. The defendant named as "Boshell Clinic, Inc.," was dismissed on June 6, 2000, because the clinic was in fact not an incorporated entity.
On July 7, 2000, McCullar amended her complaint to add as defendants Dr. N. Frank McCreless, D.C., and Winston County Chiropractic Clinic (hereinafter referred to as "the McCreless defendants"). The amended complaint stated that Dr. McCreless, practicing chiropractic through Winston County Chiropractic Clinic, had evaluated and treated McCullar between January 6 and January 24, 2000, in Winston County. The amended complaint alleged medical malpractice against the McCreless defendants, alleging that they, also, had breached the standard of care applicable to chiropractors and chiropractic clinics and that McCullar had suffered various injuries as a result of the breach.
On July 18, 2000, the McCreless defendants filed a motion to transfer the case from Walker County to Winston County, based upon Ala. Code 1975, § 6-5-546, the venue provision of The Alabama Medical Liability Act of 1987. Their motion argued that because McCullar, a resident of Winston County, had amended her complaint to allege that acts or occurrences in both Walker and Winston Counties had caused her injuries, the statute required that the case be transferred from Walker County to Winston County. On or about August 25, 2000, Dr. Boshell filed a brief in opposition to the McCreless defendants' motion to transfer. In opposition, Dr. Boshell argued that under § 6-5-546 venue was proper when McCullar first filed her action, and that proper venue must be determined at the time an action is filed. Dr. Boshell argued that the McCreless defendants were entitled, at most, to a severance of the claims against them and a transfer of those claims to Winston County, not a transfer of the entire case. The motion was subsequently argued before the trial court on September 7, 2000. On September 19, 2000, the trial court entered an order finding Winston County to be a proper venue for the action and transferring the entire case to that county.
This Court has clearly established the basis on which a writ of mandamus will issue:
"A writ of mandamus is an extraordinary remedy, and it will be `issued only when there is: 1) a clear legal right in the petitioner 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) properly invoked jurisdiction of the court.' Ex parte United Serv. Stations, Inc., 628 So. 2d 501, 503 (Ala. 1993). A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal. Ex parte Drill Parts & Serv. Co., 590 So. 2d 252 (Ala. 1991)." Ex parte Empire Fire & Marine Ins. Co., 720 So. 2d 893, 894 (Ala. 1998).
However, "a petition
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