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?