Ex parte Children's Hospital of Alabama8/19/2005
PETITION FOR WRIT OF MANDAMUS
The Children's Hospital of Alabama and Martha Pszyk petition this Court for a writ of mandamus directing the trial court to transfer a case from the Bessemer Division of the Jefferson Circuit Court to the Birmingham Division. The respondent, Harrison Taylor Terry, as personal representative of the estate of Austin Taylor Terry, deceased, moved to dismiss the petition for the writ of mandamus. We deny the motion to dismiss, grant the petition, and issue the writ.
Facts and Procedural History
On September 6, 2002, Austin Taylor Terry, a 14-month-old child, was admitted to the emergency room of the Children's Hospital of Alabama ("the Hospital") in Birmingham. Austin lived with his mother and custodial parent, Amber Michelle Phillips, in Bessemer. The admitting doctor noted that Austin was suffering from "Non-Accidental Trauma." The doctor assigned Martha Pszyk, a social worker employed by the Hospital, to the case. Pszyk contacted both the Department of Human Resources ("DHR") and the Bessemer Police Department on the day Austin was admitted to the Hospital. The Hospital states that, upon determining that Austin was medically stable, the treating physician discharged Austin to Phillips, based on instructions received by the Hospital from DHR.
On November 2, 2002, Phillips discovered Austin non-responsive in his crib. She rushed him to the Hospital and, according to the Hospital, Austin arrived "in grave condition"; he died the next day. Phillips's boyfriend, Christopher Wesson, was charged with capital murder for Austin's death. The criminal case against Wesson is pending in the Bessemer Division of the Jefferson Circuit.
On December 5, 2002, Harrison Taylor Terry, Austin's father, sued the Hospital, DHR, and DHR employee Susan Tulle in the Bessemer Division of the Jefferson Circuit Court (case no. CV-02-1703). The complaint alleged that the defendants: (1) had failed to adequately and timely report that Austin had been abused; (2) had failed to investigate and otherwise to act upon allegations of abuse; (3) had failed to remove Austin from a life-threatening situation; and (4) had allowed Austin to be released to the care and custody of individuals who were suspected of abuse. On January 16, 2003, the Hospital moved to dismiss Terry's complaint or, in the alternative, for a change of venue to the Birmingham Division of the Jefferson Circuit Court. The trial court denied that motion, and the Hospital moved the trial court to reconsider it.
On April 29, 2003, Phillips filed in the Bessemer Division of the Jefferson Circuit Court a separate wrongful-death action against the Hospital, Pszyk, Wesson, and DHR employees Susan Tulle, JoAnn Hood, and Evonne Sumerlin (case no. CV-03-565). Her complaint alleged that the Hospital, Pszyk, and the DHR employees failed properly to report and investigate suspicions and allegations of abuse and to remove Austin from a life-threatening situation. On June 3, 2003, the Hospital and Pszyk moved to dismiss Phillips's complaint or, in the alternative, for a change of venue to the Birmingham Division.
On that same day, June 3, 2003, the Hospital for a second time moved the trial court in case no. CV-02-1703, the case brought by Austin's father, Terry, to dismiss that case, arguing that, because Phillips was Austin's custodial parent at the time of his death, the exclusive right to bring a wrongful-death action belongs to Phillips. See ยง 6-5-390, Ala. Code 1975. Terry responded and also sought a preliminary injunction to prevent Phillips from pursuing her wrongful-death action.
On November 20, 2003, the trial court heard arguments regarding who is the pro
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