Rel: September 27, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern 

Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 

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SUPREME COURT OF ALABAMA

SPECIAL TERM, 2024

_________________________

SC-2024-0542

_________________________

Ex parte Affinity Hospital, LLC, d/b/a Grandview Medical 

Center 

PETITION FOR WRIT OF MANDAMUS

(In re: Mary Louise Dinkins, as personal representative of the 

Estate of Mattie M. Patterson, deceased

v. 

Affinity Hospital, LLC, d/b/a Grandview Medical Center et al.) 

(Montgomery Circuit Court: CV-23-900984)

SELLERS, Justice.
SC-2024-0542

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Affinity Hospital, LLC, d/b/a/ Grandview Medical Center

("Grandview"), petitions this Court for a writ of mandamus directing the 

Montgomery Circuit Court ("the trial court") to vacate its order

compelling Grandview to respond to discovery requests that it claims 

seek information or documents that are statutorily privileged and 

requiring it to produce a privilege log in accordance with Rule 26(b)(6)(A), 

Ala. R. Civ. P. Grandview further requests that this Court direct the trial 

court to grant its motion for a protective order. We deny the petition. 

I. Facts

On July 20, 2023, Mary Louise Dinkins ("the plaintiff"), the 

personal representative of the estate of Mattie M. Patterson, deceased, 

commenced an action against, among others, Grandview, alleging 

wrongful death and medical malpractice relating to the care that 

Patterson received while she was a patient of Grandview. Along with the 

complaint, the plaintiff requested production of documents and answers 

to interrogatories. Grandview objected to certain of the discovery 

requests, contending that the information or documents requested were 

confidential and, thus, privileged from discovery under Ala. Code 1975, §
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22-21-8, § 6-5-333, and § 34-24-58 ("the quality-assurance statutes").1 In 

support of its position that the information or documents requested were 

statutorily privileged, Grandview offered the affidavit of its "quality 

manager," who stated generally that, "to the extent" the information

sought "exists," it would have been obtained only "in association with the 

performance of [Grandview's] quality assurance functions and activities."

The plaintiff ultimately moved the trial court to compel Grandview to 

respond to the discovery requests and to produce a privilege log in 

accordance with Rule 26(b)(6)(A), identifying with sufficient detail all 

1Although Grandview cites three statutes, it appears to rely

primarily, if not entirely, on § 22-21-8, Ala. Code 1975, referred to as 

Alabama's peer-review statute, which expressly applies to "quality 

assurance" materials. Section 22-21-8(b) provides, in relevant part, that

"[a]ll accreditation, quality assurance credentialling and 

similar materials shall be held in confidence and shall not be 

subject to discovery or introduction in evidence in any civil 

action against a health care professional ... arising out of 

matters which are the subject of evaluation and review for 

accreditation, quality assurance and similar functions, 

purposes, or activities."

Section 6-5-333, Ala. Code 1975, declares, in relevant part, that various 

types of information furnished to or generated by a "committee," as 

defined in that section, are privileged and not available for discovery. 

Section 34-24-58, Ala. Code 1975, provides a privilege to committees of 

physicians or surgeons under certain circumstances. 
SC-2024-0542

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information and documents being withheld under a claim of statutory 

privilege. Following a hearing, the trial court entered an order granting 

in part and denying in part the plaintiff's motion to compel. The trial 

court specifically ordered Grandview to respond to certain of the 

discovery requests and to produce a privilege log regarding any 

information or documents being withheld from production under a claim 

of privilege. Grandview filed a motion for a protective order, which the 

trial court denied. This mandamus petition followed. 

II. Standard of Review

"'Mandamus is an extraordinary remedy and 

will be granted only when there is "(1) a clear legal 

right in the petitioner to the order sought, (2) an 

imperative duty upon the respondent to perform, 

accompanied by a refusal to do so, (3) the lack of 

another adequate remedy, and (4) properly 

invoked jurisdiction of the court." Ex parte Alfab, 

Inc., 586 So. 2d 889, 891 (Ala. 1991). In Ex parte 

Ocwen Federal Bank, FSB, 872 So. 2d 810 (Ala. 

2003), this Court announced that it would no 

longer review discovery orders pursuant to 

extraordinary writs. However, we did identify four 

circumstances in which a discovery order may be 

reviewed by a petition for a writ of mandamus. 

Such circumstances arise (a) when a privilege is 

disregarded, see Ex parte Miltope Corp., 823 So.

2d 640, 644-45 (Ala. 2001) .... The burden rests on 

the petitioner to demonstrate that its petition 
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presents such an exceptional case -- that is, one in 

which an appeal is not an adequate remedy. See 

Ex parte Consolidated Publ'g Co., 601 So. 2d 423, 

426 (Ala. 1992).'

"Ex parte Dillard Dep't Stores, Inc., 879 So. 2d 1134, 1136-37 

(Ala. 2003)."

Ex parte Fairfield Nursing & Rehab. Ctr., L.L.C., 22 So. 3d 445, 447 (Ala. 

2009).

III. Discussion 

A. Privilege-Log Argument 

Grandview argues that the trial court exceeded its discretion in

ordering it to produce a privilege log regarding any information or 

documents being withheld under a claim of statutory privilege because, 

it says, by enacting the quality-assurance statutes, the legislature has 

carved out an exception to the privilege-log requirement of Rule 26. Rule 

26(b)(1) allows "[p]arties [to] obtain discovery regarding any matter, not 

privileged, which is ... relevant to the subject matter involved in the 

pending action" and which is "reasonably calculated to lead to the 

discovery of admissible evidence." (Emphasis added.) The term 

"privileged" as used in Rule 26(b)(1) refers to privileges "'as that term is 

understood in the law of evidence.'" Ex parte Alfa Ins. Corp., 284 So. 3d 
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891, 903 (Ala. 2019) (quoting United States v. Reynolds, 345 U.S. 1, 6 

(1953)). Rule 26(b)(6)(A), concerning privilege logs, provides, in relevant 

part:

"When a party withholds information otherwise discoverable 

under these rules on a claim that it is privileged or subject to 

protection as trial-preparation materials, the claim shall be 

made expressly and, upon written request by any other party, 

shall be supported by a description of the nature of the 

documents, communications, or things not produced sufficient 

to enable the demanding party to contest the claim."

According to Grandview, the privilege-log requirement of Rule 26

was designed to apply only to evidentiary privileges that, it says, unlike 

statutory privileges, can be waived. Grandview characterizes qualityassurance materials as being absolutely barred by the quality-assurance 

statutes; thus, it asserts that the plaintiff is precluded from seeking 

discovery of any quality-assurance materials either directly or 

"surreptitiously" under the guise of requiring a privilege log. In fact, 

Grandview claims that the quality-assurance statutes preclude it from 

disclosing whether or not the materials sought even exist. 

In light of the policy behind the quality-assurance statutes, it is 

clear that the legislature intended that quality-assurance materials be 

exempt from Rule 26(b)(1)'s broad scope of discovery. See Ex parte 
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Anderson, 789 So. 2d 190, 202 (Ala. 2000) (plurality opinion) ("[W]e 

remain mindful of the intent of the legislature when it enacted these 

[quality-assurance] statutes: to encourage meaningful peer review, with 

the goal of providing a better, more efficient, medical system for the 

people of this State."). However, Grandview's argument that the 

legislature, by enacting the quality-assurance statutes, completely 

carved out and totally exempted quality-assurance materials from Rule 

26's field of operation is without merit. Grandview makes the blanket 

assertion that a statutory privilege applies without any judicial 

oversight, intervention, or review. But that is not the case. See, e.g.,

United States v. Reynolds, 345 U.S. at 9-10 ("Judicial control over the 

evidence in a case cannot be abdicated to the caprice of executive 

officers."). Moreover, such a view would eliminate trial courts from being 

the gatekeepers of admissible evidence and could permit, if not 

encourage, a health-care provider to require that all complaints, reports 

of incidents of complications, or other incident reports of any kind to be 

created for a quality-assurance committee and thus become qualityassurance materials subject to a claim of statutory privilege. In any 

event, the law in this State is clear that the determination regarding
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whether specific materials are privileged is a factual question. See Ex 

parte Estate of Elliott, 272 So. 3d 1021 (Ala. 2018). 

Privilege logs are routinely produced with regard to information or 

documents being withheld under a claim of statutory privilege. See, e.g., 

Ex parte Huntsville Emergency Med. Servs., Inc., 372 So. 3d 538 (Ala. 

2022) (noting that certain defendants had filed and served privilege logs 

identifying the information that they had withheld as privileged under §

6-5-551, Ala. Code 1975, which is a part of the Alabama Medical Liability 

Act), and Ex parte Mobile Infirmary Ass'n, 278 So. 3d 1195, 1200 (Ala. 

2018) (indicating that the trial court had ordered the defendant to 

produce a privilege log for all documents withheld from production as 

privileged under § 22-21-8). In fact, in Ex parte Estate of Elliott, a case 

involving § 22-21-8, this Court held that a trial court had exceeded its 

discretion by denying a plaintiff's motion to compel without first 

requiring the production of a privilege log describing the documents being 

withheld. This Court explained that, without any description of the 

documents that were being withheld, the plaintiff "could not effectively 

formulate a response to the defendants' assertion of privilege." 272 So. 3d 

at 1030. We additionally stated that, "by not requiring the defendants to 
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provide a privilege log, the trial court denied [the plaintiff'] of the 

opportunity to present an effective argument on appeal challenging the 

trial court's denial of its requests for production ...." Id. Thus, contrary to 

Grandview's argument, the legislature has not diminished the judiciary's 

role in the discovery process when a party asserts that information is

subject to a statutory privilege. Rather, when a health-care provider such 

as Grandview, asserts a statutory privilege, it must establish its 

applicability in the same manner as a party asserting any other privilege.

The quality-assurance statutes and Rule 26 operate concurrently, 

establishing the confidentiality of quality-assurance materials while also 

requiring adherence to the procedural requirements of Rule 26. 

Accordingly, the trial court did not exceed its discretion in ordering 

Grandview to produce a privilege log in accordance with Rule 26(b)(6)(A)

with regard to any information or documents being withheld under a 

claim of statutory privilege; for the same reasons, Grandview is not 

entitled to a protective order regarding any such information or 

documents. 

B. Alternative Argument
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Grandview argues that, even if information or documents subject to 

a statutory privilege fall within Rule 26's field of operation, it is still not 

required to produce a privilege log because, it says, the affidavit it 

presented sufficiently demonstrates that the materials the plaintiff seeks

are privileged quality-assurance materials under § 22-21-8 and that 

disclosing any information regarding those materials would be 

prejudicial to Grandview. Grandview, the party asserting privilege, "has 

the burden of proving the existence of the privilege and the prejudicial 

effect of disclosing the information." Ex parte Fairfield Nursing & Rehab. 

Ctr., 22 So. 3d at 448. This is generally accomplished through affidavit

testimony. In this case, Grandview offered the affidavit of Austin 

Bartolic, its quality manager, who stated, in relevant part:

"5. I have reviewed and am familiar with the Plaintiff's 

Interrogatories and Request for Production propounded to 

Grandview in this matter, and am familiar with the types of 

documents, records and information that could potentially be 

responsive thereto. Plaintiff's discovery requests include 

Interrogatories and Requests for Production that, directly or 

indirectly, seek documents and information that, to the extent 

it exists, would only derive from quality assurance processes, 

activities, undertakings and functions, that Grandview is 

statutorily prohibited from disclosing. The absolute 

confidentiality of such quality assurance documents and 

information is necessary and required to promote candid and 

open participation, discussion and evaluation in 

[Grandview's] quality assurance processes, and to facilitate 
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effective quality assurance functions necessary to achieve a 

high-quality of care for all [Grandview] patients.

"....

"7. Specifically, Interrogatories Nos. 17, 21 and 22, and 

Requests for Production Nos. 4, 5, 6, 7, 8, 15, 18, 22, 23, 24,

26, 29 and 32 seek documents or information that, to the 

extent it exists, would have only been obtained, created, 

derived, utilized and/or maintained exclusively in association 

with the performance of [Grandview's] quality assurance 

functions and activities. Accordingly, any information 

potentially responsive to these requests would exclusively 

consist of confidential documents and information derived 

from Grandview's quality assurance processes, functions and 

activities undertaken to assess the quality of care of all 

[Grandview] patients.

"....

"9. ... Moreover, quality assurance materials, 

information and documents are not obtained, prepared or 

maintained in the ordinary course of [Grandview's] business,

and no such material, information or document was made a 

part of [Patterson's] hospital chart. Instead, information 

sought by Plaintiff that pertains to the subjects of quality 

assurance would be maintained in confidential quality 

assurance files and records, separate and apart from any 

patient's hospital chart and [Grandview's] ordinary business 

records, and would have exclusively been created, obtained, 

and/or utilized for quality assurance purposes, in order to 

evaluate, assess and improve the quality of care for all 

[Grandview] patients."

(Emphasis added.)
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The trial court determined that the affidavit was insufficient to 

prevent the necessity of providing a privilege log. We agree. Grandview

cannot merely lump together all the information and documents the 

discovery requests seek and then state that, to the extent that such 

information or documents exist, they "would only derive from quality 

assurances processes." Rather, the burden was on Grandview to provide 

sufficient information to aid the trial court in determining whether the 

information and documents sought are in fact privileged. In this case, 

the affidavit does not even state the information or documents being 

requested. For example, in Ex parte Fairfield Nursing & Rehabilitation

Center, Fairfield sought mandamus relief from an order compelling 

production of any and all incident reports and complaints involving a 

specific patient. In support of its assertion of privilege under § 22-21-8, 

Fairfield offered the affidavits of its facility's executive director and 

former director of nursing, both of whom testified:

"'Incident reports and witness statements concerning 

residents are not kept in the ordinary course of business, nor 

do they become a part of the resident medical chart. ... 

Incident reports and witness statements are created for 

quality assurance purposes. The creation of the reports and 

the gathering of statements are needed to guarantee the high 

quality of care for all residents. ... The confidentiality of the 

incident reports and witness statements is needed to keep 
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investigations of incidents at the facility candid and open. 

Production of incident reports and witness statements to 

those outside the facility would be detrimental to the quality 

of care provided for all residents.'" 

22 So. 3d at 448. Fairfield provided a methodical response in asserting 

the privilege. First, it identified the confidential materials sought to be 

discovered, i.e., incident reports and witness statements; second, it

followed up with reasons as to why those materials were privileged; and, 

third, it provided a rationale explaining why disclosing the materials

would be detrimental. In Ex parte Qureshi, 768 So. 2d 374 (Ala. 2000), a 

plaintiff in a medical-malpractice action sought, among other things, 

documents considered by a hospital in hiring a physician. In support of 

its assertion of privilege under § 22-21-8, the hospital provided the 

affidavit from the chairman of its credentialing committee ("the affiant"),

who testified that

"the documents that would be responsive to Request 3(h)-(k) 

were maintained as part of [the hospital's] credentialing file 

on [the physician]. [The affiant] further stated that it was 

essential that the materials gathered by the hospital be kept 

confidential, so as to ensure that physicians applying for 

hospital staff privileges would provide complete and accurate 

information about their qualifications. Moreover, [the affiant] 

stated, if the information did not remain confidential then 

'physicians and health care institutions from whom materials 

are requested in the credentialing process would be less 
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inclined to provide frank and open criticisms of physician 

applicants where warranted.'"

768 So. 2d at 376. Again, the affiant employed a methodical and logical 

approach by identifying the documents as those responsive to "Request 

3(h)-(k)" and by indicating that they were maintained as part of the 

hospital's credentialing file. See also Ex parte Tombigbee Healthcare 

Auth., 260 So. 3d 1, 7-8 (Ala. 2017) (affiant for a hospital identified the 

materials it claimed were privileged, specifically, materials regarding the 

hiring, training, supervision and retention of one of its employees as well 

as any complaints the hospital received pertaining to the employee). 

Because the affidavit offered by Grandview was overbroad and failed to 

expressly identify the specific information and documents that it claimed 

were privileged, along with any relevant facts demonstrating that the 

specific information or documents are quality-assurance materials, 

Grandview could not satisfy its burden of demonstrating that the specific 

information and documents withheld from discovery were statutorily 

privileged.

IV. Conclusion
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Based on the foregoing, Grandview has failed to demonstrate a 

clear legal right to the relief sought; thus, its petition for a writ of 

mandamus is denied.

PETITION DENIED. 

Parker, C.J., and Shaw, Wise, Bryan, Mendheim, Stewart, Mitchell, 

and Cook, JJ., concur.