Sampson, etc. v. HeartWise Health Systems Corp., et al., [Ms. SC-2022-0847, May 26, 2023] __ So. 3d __ (Ala. 2023). The Court (Mendheim, J.; Wise, Sellers, Stewart, and Mitchell, JJ., concur; Shaw, J., concurs in part and concurs in the result; Parker, C.J., and Bryan and Cook, JJ., concur in part and dissent in part) affirms in part and reverses in part the Marshall Circuit Court’s summary judgment in a wrongful death case filed by Alicia Marie Sampson (“Alicia”), as administratrix of the estate of her deceased husband, Joshua Aaron Sampson (“Josh”) against HeartWise Health Systems Corporation (“HeartWise Health”); HeartWise Clinic, LLC (“HeartWise Clinic”) (HeartWise Health and HeartWise Clinic are collectively referred to as “HeartWise”); Isaac Health & Prevention Partners, LLC (“Isaac Health”); William A. Nixon, M.D.; and Jeffrey A. Saylor, M.D. (Nixon and Saylor are collectively referred to as “Drs. Nixon and Saylor”). Isaac Health, which is owned by Drs. Nixon and Saylor operates a health clinic located in Albertville. Isaac Health has a licensing agreement with HeartWise Clinic to use a cardiovascular-disease-prevention program that HeartWise Health developed. On August 21, 2015, Josh visited the Isaac Health clinic and had a cardiac evaluation. The HeartWise “report stated, inter alia, that the data from the left ventricular echocardiogram was within the ‘normal’ range” and “also stated that Josh’s EKG was ‘normal’ as ‘interpreted by medical provider.’” Ms. **16-17. On October 5, 2015, Josh “died due to an arrhythmia secondary to hypertrophic cardiomyopathy, which is a congenital heart condition.” Ms. *18.
The wrongful death complaint asserted two legal theories: “(1) fraud, which was asserted against HeartWise and Isaac Health; and (2) negligence, which was asserted against HeartWise, Drs. Nixon and Saylor, and vicariously against Isaac Health.” Ms. *18. The parties agreed “that ‘HeartWise is not within the definitions of healthcare provider provided in the AMLA, see § 6-5-481, Ala. Code 1975, and, therefore, that ‘both the fraud and negligence claims against HeartWise are governed by general common law and not by the AMLA.’” Ms. **18-19.
The Court reverses the summary judgment dismissing the negligence allegations against Isaac Health and Drs. Nixon and Saylor because those defendants “never moved for a summary judgment with respect to Alicia’s negligence allegations against them, those allegations were never properly presented to the circuit court for adjudication, and the burden never shifted to Alicia to defend those allegations.” Ms. *27.
The Court reiterates because there is but one cause of action for wrongful death a “plaintiff’s allegations may involve variations on legal theories for recovery but that those theories do not compose separate ‘claims.’” Ms. *24, citing Sledge v. IC Corp., 47 So. 3d 243, 247 (Ala. 2010). The Court rejects the argument that the fraud claim did not survive Josh’s death “because the fraud is alleged to be a contributing cause of Josh’s wrongful death, there is no issue of ‘survival’ with respect to such a ‘claim’ – the theory of recovery based on fraud. See In re Rezulin Prods. Liab. Litig., 133 F. Supp. 2d 272, 287 n. 49 (S.D.N.Y. 2001) (explaining that, ‘[h]ere, the Alabama complaint alleges that the alleged fraud caused the death of plaintiff’s decedent. See Cantley v. Lorillard Tobacco Co., Inc., 681 So. 2d 1057 (Ala. 1996) (stating fraud claims in wrongful death action).’” Ms. *33.
The fraud allegations against HeartWise are premised on advertising on HeartWise’s website. The fraud allegations against Isaac Health are premised on HeartWise advertising materials in the Isaac Health clinic’s waiting room. Ms. *29. On the issue of reliance the Court explains “[w]hen we assess deposition testimony for the purpose of determining whether it defeats a motion for summary judgment, we must ‘view the testimony as a whole, and, so viewing it, determine if the testimony is sufficient to create a reasonable inference of the fact the plaintiff seeks to prove.’ Hines v. Armbrester, 477 So. 2d 302, 304 (Ala. 1985).’” Ms. *38. “When the evidence is viewed as a whole in that light, a fair-minded person could conclude that information provided by HeartWise helped persuade Josh to go to the Isaac Health clinic.” Ms. *39. However, the Court affirms the summary judgment for Isaac Health dismissing the fraud based theory because “[t]here is no evidence indicating that Josh would not have proceeded with the appointment without the HeartWise materials present in the Isaac Health clinic’s waiting room.” Ms. *40.
The Court affirms the summary judgment on the negligence allegations against HeartWise stating “the negligence described in Alicia’s allegations and that which her experts testified about concerned the provision of medical care, i.e., diagnosis, treatment, and care of a patient for potential health issues. Alleged mistreatment for medical care is governed by the AMLA…. However, as we noted in the rendition of the facts, Alicia concedes that the AMLA does not apply to HeartWise. Thus, the nature of Alicia’s negligence allegations precludes holding HeartWise at fault for the errors she alleges.” Ms. **53-54.