Tuesday, February 1, 2011

Do You Really Want to Receive Health Care at a State Hospital?

Imagine going to UAB Hospital to have your appendix removed, only to wake up and discover that your appendix still is in place--but your right leg has been amputated.

The surgical team made a world-class boo-boo and you can expect to receive a substantial sum for your pain and suffering in a court of law, right? Not so fast.

After all, UAB stands for the University of Alabama at Birmingham, a state institution. And a recent ruling from the Alabama Supreme Court indicates that UAB and other state-run hospitals can commit all kinds of medical negligence and then hide behind the cloak of "state immunity."

That's one of many disturbing lessons to be taken from Health Care Authority for Baptist Health v. Kay E. Davis, a ruling that was released on January 14. The opinion, authored by Justice Mike Bolin, overturned a $3.2-million jury verdict in the death of 73-year-old Lauree Ellison. Kay Davis, as executrix of the Ellison estate, filed the lawsuit in May 2006.

The decision was so stunning that even the usually clueless Birmingham News expressed outrage. It also raises questions about possible conflicts of interests for a member of the University of Alabama Board of Trustees who was involved in the case.

Bolin found, in a 4-3 decision, that Baptist Health could not be sued because it had entered into an affiliation agreement with the UAB Health System in 2004, about a year before forming its own health-care authority. Because of its affiliation with UAB, Bolin wrote, Baptist Health enjoys the immunity from lawsuits that often is afforded state entities under the Eleventh Amendment to the U.S. Constitution.

What kind of care did Lauree Ellison receive at Baptist Health and what led to the Alabama Supreme Court ruling? Here is how the Montgomery Advertiser described it:

The hospital had appealed a 2009 Montgomery County jury's verdict that Baptist Health was negligent when it failed to notify 73-year-old Lauree Ellison or her physician that a throat culture had come back positive for Methicillin Resistant Staphylococcus Aureus (MRSA). The culture was done during a visit to the Baptist Medical Center East emergency room in September of 2005.

About two months later, Ellison was re-admitted to Baptist Medical Center East and diagnosed as having MRSA Pneumonia. She died five days later. The hospital contends that she actually died of congestive heart failure.

But the Alabama Supreme Court said that regardless of the cause, the hospital could not be sued because it had governmental immunity through its relationship to the University of Alabama and the University of Alabama at Birmingham Health System.

Citizens might want to think about that the next time they seek health care at UAB. In fact, citizens might want to think about that before conducting any business at UAB--or even setting foot on the campus. As I've seen from personal experience in my ongoing employment lawsuit, the university has a tendency to cause harm and then try to hide behind the skirt of immunity.

If the law is applied correctly, UAB and other state entities often cannot get away with such legal shenanigans. But UAB and its corporate affiliates have judicial "protectors" in both state and federal courts in Alabama, and if regular folks are harmed (or even killed) because of it . . . well, the administrators who currently are running UAB into the ground don't much care.

Lengthy treatises have been written on state immunity, also known as "sovereign immunity" or "Eleventh Amendment immunity," and we won't go into too much detail on a controversial and complicated topic. The basic idea is that private individuals cannot sue for damages that would be paid from a state treasury. A number of exceptions exist to state immunity, but Bolin found that they did not apply in the Davis case, even though Baptist Health clearly is not a state entity and did not even assert an immunity defense at trial.

Chief Justice Sue Bell Cobb expressed concern about Bolin's opinion and what it could mean to Alabama citizens:

Chief Justice Sue Bell Cobb, one of the three dissenting justices, went as far as to write that the majority's opinion essentially implies that Baptist Health "is no longer legally responsible for the harm that may be caused by its negligence in providing health care to the citizens of this state."

What Cobb did not say is that UAB and the University of South Alabama Medical Center already might not be held legally responsible for the harm that they cause. Is the public aware of that? Is that what those who clamor for "states' rights" really want?

The Davis ruling raises many alarming legal issues, and we will be examining the case closely in future posts. But for now, let's take a quick look at the actions of Joe Espy. Espy is a Montgomery lawyer who serves on the University of Alabama Board of Trustees. He also served as a lawyer for Baptist Health in the Davis case.

Does Espy's dual role as a board member at the University of Alabama and a lawyer for UA affiliate Baptist Health represent a conflict of interest? Does Espy stand to receive private gain as a result of his role on a public board? Did Espy make the ethics disclosures required by Board of Trustees' rules?

We will be examining these questions and more. The Alabama Supreme Court's ruling in the Davis case clearly smells. The only question: How many levels will the stench reach?


TrudyBlue said...

In fairness, this Davis decision didn't change anything about UAB's immunity. That decision rises or falls on whether it makes sense to extend immunity to Baptist. UAB's immunity is unchanged and nothing new.

Sorry to nitpick.

legalschnauzer said...


You are correct that nothing in the Davis decision changes UAB's immunity status. But it does show that other facilities are trying to ride the "immunity train." And it shines a spotlight on the fact that you can be the victim of gross medical negligence/malpractice at UAB, and the university will try to squirm out of accountability by citing immunity issues. I'm sure most citizens do not know how legally vulnerable they can be when they seek care at UAB Hospital. I'm going to be reporting on other medical-malpractice cases, involving some various serious health issues where UAB has essentially said, "Hey, we're immune . . . tough luck. Thanks for your business. Oh wait a minute, you're dead. Guess we won't be seeing you again!"

Max Shelby said...

Wouldn't it be interesting to hear Dr. Dr. Bentley's take on this subject?

boucardog said...

Baptist Hospital just killed my father> He went in for a dialysis catheter and had his bowel punctured by the physician who denied that there was a problem until feces started pouring out of his side. A week laterhe was rushed in the middle of the moiddle of the night to have a ileostomy. He beacame septic and is on a respirator and not expected tp recover. The fact that doctors can commit homicide and patients hjave no recourse is horrible and needs to be corrected. Otherwise, every bad doctor should rush to Baptist Hospital and be available when the judges have their MI.

legalschnauzer said...


Very sorry to hear about the experience with your father. Hope you can find a solid lawyer to take this case. I know a number of plaintiff's lawyers are seeking reconsideration of the Supreme Court ruling mentioned in this post, so the matter is not completely settled. Will stay on the story, and hope you will feel free to keep us posted on your family's situation.


boucardog said...

thanks for your kind words. Unfortunately after my father's leg surgery was corrected everything went downhill. His bowels were perforated by the radiologist. He was oversedated by the nurses and aspirated and ended up on a respirator for aspiration pneumonia. He bled from the stomach from blood thinners and was left lying in pools of blood. He developed massive, infected bedsores while in intensive csre and got a bacteria in his blood from the sores and died of septic shock.Baptist is giving everybody a hard time getting his records. We are pursuing legal advice and help because it is just wrong to let someone rot in the ICU.

Unknown said...

My mother went to baptist south for a 2 day stay for a pace maker. Doctor ordered her bed rails up and bed alarm on and puree food. She fell and broke a bone in her back and the nurse fed her whole steak tips and rice without her teeth because i took them home and she asperated and coded ..ended up in ccu so now she has been in the hospital in and out for 45 days and about 11 days in rehab...she is now unable to walk...You can send a letter to the state and also it goes to medicare and they will investigate then slap a big penalty on them. I believe you can sue them only for liability and the cap is at 100,000.00. That is it

Unknown said...

I just have the need to say this to all the people who have sent prayers and kind thought to my family thank you and God bless all of you but this has been bothering me and I feel people need to know this,my sister was never ask what hosiptal to take her husband to,it's just natural everybody goes to UAB around here,I know UAB has saved many but they have also a large percent of neglects please read this article I found shocking,I am not bitter or being overly emotional about th loss of my brother n law, I was there off n on a alot since March 28th I saw this with my on eyes as well had the rest of the family did. JEFF DID NOT DIE FROM A MOTORCYCLE ACCIDENT, UAB KILLED HIM AND THAT'S THE TRUTH. SHARE THIS PLEASE

Scarted said...

I am a former patient of UAB. I sought out legal help after a botched neurosurgery. I found out after the fact that a resident did the actual opening during the surgery, not the actual neurosurgeon. My neurosurgeon is not an employee of UAB directly, but the resident was. Because it was the resident who did the opening, I could not sue the resident because he had immunity and he was the one that botched everything so badly. Now I am permanently in pain when I went to them looking for help and ended up worse off than I was.