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Ex parte Rizk6/30/2000
PETITION FOR WRIT OF MANDAMUS
(Re: Luciana Robinson, as administratrix of the estate of Elouise Robinson, deceased v. University of South Alabama Medical Center et al.)
On Application for Rehearing
The opinion of November 24, 1999, is withdrawn and the following is substituted therefor.
Defendant-petitioner Dr. Botros Rizk petitions this Court for a writ of mandamus directing the trial court to vacate its order denying Dr. Rizk's motion for summary judgment and to grant him summary judgment on the ground of his qualified immunity from suit. We determine that the writ must be denied.
Luciana Robinson, as administratrix of the estate of Elouise Robinson, deceased, filed a wrongful death action on the theory of medical malpractice pursuant to ยง 6-5-548, Ala. Code 1975. One of the defendants is Dr. Botros Rizk, a resident at the University of South Alabama Hospitals and Clinics (USAHC), a state institution. The complaint alleges that negligence by Dr. Rizk in performing an emergency caesarean-section delivery and in providing aftercare proximately caused the death of his patient, whose estate the plaintiff Robinson administers.
Dr. Rizk moved for summary judgment. One of his grounds is that his status as a state employee performing a discretionary function immunizes him from suit. The trial judge denied Dr. Rizk's motion for summary judgment, Dr. Rizk sought permissive appeal under Rule 5, Ala. R. App. P., the trial judge denied permission, and Dr. Rizk petitioned this Court for a writ of mandamus directing the trial judge to grant the motion for summary judgment. While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion for summary judgment grounded on a claim of immunity is reviewable by petition for writ of mandamus. Ex parte Purvis, 689 So. 2d 794 (Ala. 1996). This Court will address only the issue of qualified immunity, or, as we will call it in this context, State-agent immunity, and will state only the operative facts material to that issue.
Summary judgment is appropriate only when "there is no genuine issue as to any material fact and ... the moving party is entitled to a 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).
Dr. Rizk was a full-time third-year resident at USAHC, a division of the University of South Alabama and a state entity for the purposes of immunity analysis. Sarradett v. University of South Alabama Medical Center, 484 So. 2d 426 (Ala. 1986). The only compensation he received was his salary paid by USAHC. He was
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