Ex parte Jackson Hospital & Clinic, Inc., [Ms. SC-2023-0601, Oct. 4, 2024] __ So. 3d __ (Ala. 2024). The Court (Shaw, J.; Wise, Sellers, Mendheim, and Mitchell, JJ., concur; Shaw, J., concurs specially; Bryan and Stewart, JJ., concur in the result; Parker, C.J., dissents; Cook, J., recuses) issues a writ of mandamus to the Montgomery Circuit Court directing dismissal of a medical negligence wrongful death action against Jackson Hospital based on the liability protections in the May 8, 2020 Supplemental COVID Emergency Proclamation conferring immunity from certain negligence claims on healthcare providers. Plaintiff’s decedent, Nathaniel Johnson, died at Jackson Hospital in December 2020 while being treated for COVID-19. Nathaniel’s executor’s wrongful death complaint asserted theories of negligence and wantonness alleging that Nathaniel’s supplemental-oxygen supply had been removed while he was being transferred within the hospital.
As set out in Chief Justice Parker’s comprehensive dissent, serious separation-of-powers arguments were made by the plaintiff challenging the constitutionality of changing substantive tort law by executive order. An 8-1 majority of the Court rejected these constitutional challenges and held that the 1955 Alabama Emergency Management Act (“the AEMA”), codified at § 31-9-1 et seq., Ala. Code 1975, delegated to the Governor the authority to issue the liability protections. The Court explains: “[t]he legislature, through the AEMA, did not grant the governor carte blanche or unlimited power,” and “the doctrine of separation of powers does not prohibit the Legislature’s delegating the power to execute and administer the laws, so long as the delegation carries reasonably clear standards governing the execution and administration.” Folsom v. Wynn, 631 So. 2d 890, 894 (Ala. 1993). Importantly, the legislature has, by the ACIA [Alabama Coronavirus Immunity Act], ratified and adopted Governor Ivey’s actions.” Ms. **33-34.
The Court also concludes promulgation of the liability protections did not violate Ala. Const. 2022, Art. I, § 21, which states: “That no power of suspending laws shall be exercised except by the legislature.” The Court holds “there was no violation of § 21 under the facts of this case. In these circumstances, any suspension of the law that occurred as a result of the governor’s order was effected by the legislature, not the governor. In other words, contrary to the Chief Justice’s dissent, the legislature, by its express enactments and words, suspended all law contrary to the governor’s order. Governor Ivey did not exercise any suspension powers, and we see no delegation of powers in violation of the separation-of-powers doctrine.” Ms. **36-37.
The Court also concludes because “Jackson Hospital was immune under the May 8 proclamation from Johnson’s negligence claims, … the immunity provided by the ACIA – specifically, by §§ 6-5-792 and -794, which were enacted after Nathaniel’s death and after Johnson’s cause of action accrued – does not impermissibly abrogate Johnson’s negligence claims for purposes of § 13. Instead, those claims were already barred when the ACIA was enacted; thus, there was no ‘vested interest’ in a cause of action on those claims.” Ms. *37.
Finally, the Court concludes that the Plaintiff did not submit sufficient evidence of wantonness and dismisses that theory as well. Ms. **37-44.