Donald Mottern, etc. v. Baptist Health System, Inc., etc., [Ms. SC-2024-0148, Sep. 6, 2024] __ So. 3d __ (Ala. 2024). In a plurality opinion, the Court (Sellers, J.; Wise and Mendheim, JJ., concur; Mitchell, J., concurs in the result, which Parker, C.J., joins; Cook, J., concurs in the result, which Stewart, J., joins; Shaw, J., dissents, which Bryan, J., joins) reverses the Jefferson Circuit Court’s dismissal of a wrongful death action against Baptist Health System, Inc. (“BHS”), d/b/a BMC - Princeton Medical Center.
After undergoing surgery at Princeton Medical Center, Lavonne Mottern contracted a blood infection caused by a bacterially contaminated intravenous infusion of total parenteral nutrition (“TPN”). The Personal Representative of Lavonne’s estate asserted negligence, wantonness, AEMLD, and UCC breach of implied warranty theories against BHS. Two weeks before the trial was scheduled to begin, BHS filed a motion to strike the AEMLD and warranty theories. After indicating it would grant that motion, the trial court went further and dismissed the entire action, “concluding that the negligence and wantonness claims did not meet the strict pleading standards under the AMLA, see § 6-5-551, Ala. Code 1975.” Ms. *5.
The main opinion rejects Mottern’s argument that the AMLA’s standard-of-care provisions do not apply to his AEMLD and warranty theories and concludes “[Mottern is entitled to assert various theories of liability against BHS, a health-care provider, including alleging claims under the AEMLD and breach-of-warranty claims under the UCC. But those claims are subject to the AMLA, including its standard-of-care provisions. With that caveat, the trial court’s judgment is reversed, and the matter is remanded for further proceedings consistent with this opinion.” Ms. *22.
Justice Mitchell, joined by Chef Justice Parker, concurred in the result explaining that Mottern’s complaint adequately plead all four theories of liability. Ms. **30-31. However, Justice Mitchell invites the parties in any future appeal to address “whether this Court’s decision in Skelton [v. Druid City Hospital Board, 459 So. 2d 818 (Ala. 1984)] is due to be overruled for the reasons given in the BCA’s amicus brief.” Ms. *31. Skelton “held that hospitals supplying physical materials as part of medical procedures are ‘sellers’ of those products for purposes of product-liability actions.” Ms. *28.
Justice Cook, joined by Justice Stewart, concludes BHS “waived any challenges to the sufficiency of the pleadings when it filed its answer to the complaint on May 11, 2011, Ms. *39, and asserts “[t]he applicability of the AMLA’s standard-of-care provisions has no bearing on our decision to reverse the trial court’s dismissal of all of Mottern’s claims. Because the main opinion’s discussion of this issue is not necessary to the result, I cannot join the opinion as written and concur only in the result.” Ms. *35.
Justice Shaw’s dissent, joined by Justice Bryan, would treat the trial court’s order as certifying several issues for interlocutory appeal, and deny review as to the question relating to the sufficiency of the allegations of negligence and wantonness and grant review of the question relating to whether BHS is a seller. Ms. *39.