Ex parte Victor Chin, M.D., and Sportsmed Orthopedic Specialists, P.C. PETITION FOR WRIT OF MANDAMUS

Rel: May 5, 2023

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, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA
OCTOBER TERM, 2022-2023
____________________

1210175
____________________

Ex parte Victor Chin, M.D., and Sportsmed Orthopedic
Specialists, P.C.

PETITION FOR WRIT OF MANDAMUS

(In re: Malik Landen Woodard

v.

Sentry Insurance et al.)

(Jefferson Circuit Court, CV-21-902470)

PARKER, Chief Justice.

Victor Chin, M.D., and Sportsmed Orthopedic Specialists, P.C.

(collectively "the Sportsmed defendants"), are defendants in an action
1210175

brought by their patient, Malik Landen Woodard. Woodard alleged that,

against his wishes, Dr. Chin obtained records of Woodard's prior

psychological treatment. The Sportsmed defendants seek mandamus

relief from (1) the Jefferson Circuit Court's order denying their motion to

change venue based on the Alabama Medical Liability Act, § 6-5-480 et

seq., Ala. Code 1975, and the Alabama Medical Liability Act of 1987, § 6-

5-540 et seq. (collectively "AMLA"), and (2) the court's order prohibiting

them from using the psychological records (and certain related

documents) in the case and requiring them to return or destroy those

records and documents ("the protective order"). 1 As to the venue order,

we deny the petition because the Sportsmed defendants do not argue that

the complaint did not support an inference that Dr. Chin had no medical

reason for obtaining the psychological records. As to the protective order,

we deny the petition because the Sportsmed defendants do not

demonstrate that the order is subject to mandamus review.

1Dr. Chin and Sportsmed were represented by the same counsel,
both in the circuit court and before this Court.
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I. Facts

The following historical facts are summarized from the facts alleged

in Woodard's operative complaint, which are taken as true at this

procedural juncture. See Ex parte Jim Walter Homes, Inc., 712 So. 2d

733, 734, 736 (Ala. 1998).

In March 2018, a one-ton battery cabinet that Woodard was

installing while working fell on him, causing serious crush injuries.

Woodard was airlifted to a hospital for emergency surgery. Several days

later, he was transferred to a rehabilitation center. After his release and

as part of his follow-up care, he attended therapy sessions with a

psychologist.

In October 2019, Woodard saw Dr. Chin for pain management. Dr.

Chin was a licensed physician with Sportsmed Orthopedic Specialists,

P.C., at its center in Huntsville. At Woodard's first appointment, he

signed a medical-records-release form generally authorizing other

health-care providers to release their medical records to Dr. Chin. During

the appointment, Dr. Chin asked Woodard for consent to obtain records

of the psychologist's treatment. Woodard said that he did not want Dr.

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Chin to obtain them. Nevertheless, Dr. Chin later sought and obtained

the psychological records from a medical-case manager who had been

retained by Woodard's employer's workers' compensation insurer.

Based on Dr. Chin's obtaining the records, Woodard sued the

Sportsmed defendants in the Jefferson Circuit Court. Woodard asserted

claims of breach of contract, breach of fiduciary duty, fraud, invasion of

privacy, the tort of outrage, and civil conspiracy. The Sportsmed

defendants moved to change venue to the Madison Circuit Court,

pointing out that a section of AMLA, § 6-5-546, Ala. Code 1975, requires

that "any action for injury or damages … against a health care provider

based on a breach of the standard of care ... be brought in the county

wherein ... the alleged breach ... occurred." The court denied the motion.

Woodard moved for a protective order, asserting that the

psychological records were confidential and privileged. He requested that

the court prohibit the Sportsmed defendants from disclosing the

psychological records in discovery or using them at trial or otherwise. He

further asked the court to order the Sportsmed defendants to return or

destroy all copies of the psychological records in their possession and any

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notes or documents summarizing them. The court granted the motion.

The Sportsmed defendants now seek mandamus relief from this

Court.

II. Standard of Review

"A writ of mandamus will be issued only when (1) the petitioner has

a clear legal right to it, (2) a respondent has refused to perform a duty,

(3) there is no other adequate remedy, and (4) the petitioned court has

jurisdiction." Ex parte Boone Newspapers, Inc., 337 So. 3d 1187, 1189

(Ala. 2021).

III. Analysis

The Sportsmed defendants seek relief from two orders: the order

denying their motion to change venue under AMLA and the protective

order prohibiting them from using or disclosing the psychological records

and certain related documents and requiring them to return or destroy

them.

A. Venue

A trial court's refusal to change venue is reviewable by mandamus.

Ex parte Sawyer, 892 So. 2d 898, 901 (Ala. 2004). Ordinarily, we review

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the denial of a motion to change venue by assessing whether the trial

court exceeded its discretion. Ex parte Flexible Prods. Co., 915 So. 2d 34,

51 (Ala. 2005). Nevertheless, we review questions of law de novo. Ex

parte Hughes, 51 So. 3d 1016, 1018 (Ala. 2010).

The Sportsmed defendants argue that the circuit court erred in

denying their motion to change venue because, they contend, Woodard's

claims are governed by AMLA, which requires that medical-malpractice

claims be adjudicated in the county in which the alleged breach occurred,

§ 6-5-546, Ala. Code 1975. Woodard concedes that, if AMLA applies, then

the venue motion should have been granted. Thus, the dispositive

question is whether AMLA applies to Woodard's claims for purposes of

the venue motion.

AMLA applies to claims (1) against a health-care provider (2) for

"medical injury" (3) based on a breach of the standard of care. See §§ 6-5-

540, -543(a), -544(a), -546, -548(a), (d), -549, -550, -551; Ex parte

Vanderwall, 201 So. 3d 525, 537 (Ala. 2015); Ex parte Addiction & Mental

Health Servs., Inc., 948 So. 2d 533, 535-36 (Ala. 2006); Jenelle Mims

Marsh, Alabama Law of Damages § 36:45, at 948-49 (6th ed. 2012).

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"Medical injury" is harm that occurs "because of the provision of medical

services," Vanderwall, 201 So. 3d at 537-38 (emphasis omitted). "Medical

services," in turn, are conduct that the health-care provider has a

"therapeutic or medical reason," id. at 538, for engaging in.

Before considering whether Dr. Chin had a therapeutic or medical

reason for obtaining Woodard's psychological records, we must first

consider the procedural standard or lens through which this factual

question must be viewed. This Court has never squarely addressed the

standard in the context of a motion to change venue. However, a motion

challenging venue is analogous to a motion challenging personal

jurisdiction. In both postures, generally the only "facts" before the trial

court are the allegations of the complaint and the averments of any

affidavits filed with or in response to the motion. See Wenger Tree Serv.

v. Royal Truck & Equip., Inc., 853 So. 2d 888, 894 (Ala. 2002) (" 'In

considering a Rule 12(b)(2), Ala. R. Civ. P., motion to dismiss for want of

personal jurisdiction, a court must consider as true the allegations of the

plaintiff's complaint not controverted by the defendant's affidavits.' "

(citation omitted)); 14D Charles Alan Wright et al., Federal Practice and

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Procedure § 3826 (4th ed. 2013) ("In ruling [on a motion challenging

venue], the court will consider to be true any well-pleaded allegations of

the complaint that bear on venue, unless contradicted by defendant's

affidavit evidence." (footnote omitted)). In viewing those facts, the court

" ' "must construe all reasonable inferences in favor of the plaintiff." ' "

Wenger, 853 So. 2d at 894 (citations omitted); see 5B Charles Alan

Wright & Arthur R. Miller, Federal Practice and Procedure § 1352 (3d

ed. 2004) ("[In deciding a motion challenging venue,] the court must draw

all reasonable inferences and resolve all factual conflicts in favor of the

plaintiff." (footnote omitted)). 2

Thus, the Sportsmed defendants had two primary options in

challenging venue. They could argue that, based on the allegations in

Woodard's complaint, no reasonable inference could be drawn that Dr.

2Asan alternative to viewing the facts regarding venue in the light
most favorable to the plaintiff, a trial court may hold an evidentiary
hearing to resolve factual conflicts. See Ex parte Bloodsaw, 648 So. 2d
553 (Ala. 1994); 14D Charles Alan Wright et al., Federal Practice and
Procedure § 3826 (4th ed. 2013); see, e.g., Ex parte Reliance Ins. Co., 484
So. 2d 414, 415-17 (Ala. 1986) (4th ed. 2013); Ex parte Wiginton, 743 So.
2d 1071, 1072, 1074-75 (Ala. 1999). The circuit court did not do so here.

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Chin had no medical reason for obtaining Woodard's psychological

records. Or the Sportsmed defendants could seek to controvert such an

inference with affidavit evidence that Dr. Chin had a medical reason.

However, the Sportsmed defendants did neither. They did not submit any

affidavits, but relied entirely on Woodard's allegations. See Thompson v.

Greyhound Lines, Inc., Civil Action No. 12-0576-WS-B, Dec. 13, 2012

(S.D. Ala. 2012) (not reported in Federal Supplement) ("Neither side

presented affidavits or other evidence [regarding venue], so the Court's

review is limited to the complaint."). And they did not argue that those

allegations did not support an inference that Dr. Chin lacked a medical

reason for obtaining the psychological records. 3

Instead, they argued that AMLA applied because the alleged harm

occurred during the course of treatment and in the context of a doctor-

patient relationship. That argument thus relied on this Court's previous

"time and place" test for determining whether a claim is for "medical

3The dissent does make that argument. But we will not grant
mandamus relief on the basis of an argument that the Sportsmed
defendants failed to make in the circuit court. See Ex parte American
Res. Ins. Co., 58 So. 3d 118, 121 n.2 (Ala. 2010).
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1210175

injury" for purposes of applicability of AMLA. Under that test, a claim

was for "medical injury" if the alleged conduct occurred "as part of a

physician's examination and/or treatment of a patient" and thus "during

the delivery of professional services," Mock v. Allen, 783 So. 2d 828, 833

(Ala. 2000). Put another way, "medical injury" was present if the conduct

occurred "during the course of medical treatment" and the claim arose

"as a direct result of a particular medical treatment," O'Rear v. B.H., 69

So. 3d 106, 114 (Ala. 2011). For example, the test asked: "Did the alleged

[conduct] occur within 'the doctor's office or hospital' and did it occur

'while [the defendant] was providing professional services'?" Vanderwall,

201 So. 3d at 536.

In Vanderwall, however, we expressly rejected that "time and

place" test and overruled Mock and O'Rear. Id. at 534-38. In its place, we

applied the medical-reason test set forth above: In short, "medical injury"

is harm that is caused by conduct that the defendant has a "medical

reason" for engaging in. See id. at 537-38.

The Sportsmed defendants' reliance on the previous "time and

place" test is confirmed by the fact that two of the cases on which the

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Sportsmed defendants relied referenced that test. See Allred v. Shirley,

598 So. 2d 1347, 1349 (Ala. 1992) (summarizing Benefield v. F. Hood

Craddock Clinic, 456 So. 2d 52 (Ala. 1984), as holding that AMLA applied

because doctors' conduct occurred " 'during the course of [the plaintiff's]

treatment by her physicians' and ... '... [was] inextricably a part of ...

doctor-patient consultations' " (citation omitted)); Ex parte Sonnier, 707

So. 2d 635, 638 (Ala. 1997) ("Claims alleging misrepresentations made

during the course of a doctor-patient relationship are claims of

malpractice and are governed by the AMLA."). (The other cases on which

the Sportsmed defendants relied held that AMLA did not apply to a claim

that arose outside the context of a doctor-patient relationship. See

Thomasson v. Diethelm, 457 So. 2d 397 (Ala. 1984); George H. Lanier

Mem'l Hosp. v. Andrews, 901 So. 2d 714, 720-21 (Ala. 2004). Those cases

did not hold that AMLA does apply to all claims that arise within the

context of a doctor-patient relationship.) To the extent that those cases

applied the "time and place" test and thus are inconsistent with

Vanderwall, we recognize that they have also been overruled.

In addition, the Sportsmed defendants argue in their petition that

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"there was a medical reason behind [Dr. Chin's] request" and that it was

a "medically-driven decision." That argument could be read as asserting

that, from the allegations of the complaint, an inference could be drawn

that Dr. Chin had a medical reason. But that assertion is premised on an

inversion of the procedural standard. As explained above, all inferences

from the complaint must be drawn in Woodard's favor, not the Sportsmed

defendants' favor. Thus, the Sportsmed defendants would need to argue

that the allegations of the complaint did not support an inference that

Dr. Chin lacked a medical reason. The Sportsmed defendants do not

make that argument.

Further, the Sportsmed defendants seek to distinguish a case relied

on by Woodard, Ex parte Addiction & Mental Health Services, Inc., 948

So. 2d 533 (Ala. 2006). There, we held that AMLA did not apply to a

patient's claims against a residential mental-health facility based on the

facility's leaving his confidential records on the floor where others could

see them and the facility's disclosing his confidential treatment

information to his employer. We concluded that, although the patient's

claims alleged a breach of a duty derived from the health-care-provider-

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patient relationship, they did not allege "medical injury." We reasoned

that the patient primarily alleged economic and reputational harm and

that, to the extent that he alleged psychological harm, his causes of action

were only for invasion of privacy, breach of contract, and breach of

fiduciary duty.

The Sportsmed defendants seek to distinguish Addiction on two

grounds. First, the Sportsmed defendants assert that the disclosures in

Addiction were inadvertent, whereas Dr. Chin's obtaining the

psychological records was intentional. However, even if the Addiction

facility's leaving the records on the floor may have been inadvertent, it is

not clear from the opinion that the facility's disclosure of the patient's

treatment information to his employer was inadvertent. Second, the

Sportsmed defendants contend that the Addiction disclosures were to

nonmedical third parties, without any medical purpose, whereas Dr.

Chin's request was for another health-care provider's records and was

made for a medical reason. But it is clear that, in Addiction, the fact that

the disclosures were made to nonmedical third parties played no role in

our analysis. And we have already addressed the Sportsmed defendants'

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"medical reason" assertion above.

More importantly, Addiction was decided before Vanderwall

established that the test for "medical injury" is whether the defendant

had a "medical reason" for the conduct. Thus, in Addiction we did not

consider whether the facility had a medical reason for the disclosures.

Accordingly, both Addiction's reasoning regarding "medical injury" and

the Sportsmed defendants' grounds for distinguishing Addiction are

inapposite.

For these reasons, the Sportsmed defendants have not

demonstrated that AMLA applies at this stage of the case. Accordingly,

they have not demonstrated that the circuit court erred in denying their

motion to change venue.

B. Protective Order

Next, the Sportsmed defendants contend that the circuit court erred

in entering the protective order. The order prohibited the Sportsmed

defendants from "disclosing, using, or offering any evidence or argument

disclosing or summarizing the substance of privileged and confidential

communications and/or records made during and for the purpose of

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[Woodard's] psychological treatment." This prohibition included all

psychological "communications and information ... [that had] been

incorporated into the records of any of the Defendants." The prohibition

applied to all disclosure or use of the described communications and

records, including in discovery, in matters involving experts, in

summary-judgment proceedings, and at trial. The order also required the

Sportsmed defendants to return or destroy all records in their possession

that "contain[ed], summarize[d] the substance of, or were created in

conjunction with" the confidential psychological communications.

Woodard generally opposes the Sportsmed defendants' mandamus

petition, although he does not oppose the part of the petition challenging

the return-or-destroy requirement of the protective order. Regardless,

the Sportsmed defendants have the burden of showing that the order is

subject to mandamus review, see Ex parte Ocwen Fed. Bank, FSB, 872

So. 2d 810, 814 (Ala. 2003); Ex parte Encompass Health Corp., 334 So.

3d 199, 203 (Ala. 2021); cf. Ex parte Tubbs, 585 So. 2d 1301, 1302 (Ala.

1991) (explaining that jurisdiction to review a mandamus petition cannot

be conferred by consent of parties).

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The Sportsmed defendants argue that the protective order is

subject to mandamus review because it requires them to destroy Dr.

Chin's own notes summarizing the contents of the psychological records.

The Sportsmed defendants assert that those notes show Dr. Chin's

reasons for obtaining the psychological records and that, without those

notes, the Sportsmed defendants "cannot properly defend" against

Woodard's claims. The Sportsmed defendants rely on the following

statement by this Court that certain types of discovery orders are subject

to mandamus review:

" ' " ' "[A] discovery order may be reviewed by a petition for a
writ of mandamus [under certain circumstances]. Such
circumstances [include] ... when the trial court either imposes
sanctions effectively precluding a decision on the merits or
denies discovery going to a party's entire action or defense so
that, in either event, the outcome of the case has been all but
determined and the petitioner would be merely going through
the motions of a trial to obtain an appeal[] or ... when the trial
court impermissibly prevents the petitioner from making a
record on the discovery issue so that an appellate court cannot
review the effect of the trial court's alleged error." ' " ' "

Ex parte Mobile Infirmary Ass'n, 279 So. 3d 1129, 1133 (Ala. 2018)

(citations omitted).

The Sportsmed defendants do not demonstrate that any of those

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circumstances is present here. First, they do not show that the protective

order's requirement to destroy Dr. Chin's notes that summarized the

psychological records "effectively preclud[es] a decision on the merits" of

the Sportsmed defendants' defense against Woodard's claims "so that ...

the outcome of the case has been all but determined and the [Sportsmed

defendants] would be merely going through the motions of a trial to

obtain an appeal," id. Although those notes may be relevant to the

Sportsmed defendants' defense, it is not at all clear from the Sportsmed

defendants' petition and reply brief that those notes (and any testimony

based on them) are the only evidence that could be presented at trial to

show Dr. Chin's reasons for requesting the psychological records. Nor is

it clear that Dr. Chin's reasons would be the central factual issue at trial;

it appears that other issues, such as whether Woodard consented to Dr.

Chin's obtaining the records, could be equally or more significant.4

4The dissent contends that the protective order's destruction
requirement caused "the outcome of the case [to be] all but determined,"
as to the parts of the complaint that demanded an injunction requiring
the Sportsmed defendants to return or destroy all copies of Woodard's
psychological records and communications, because the order
prematurely awarded that very relief. But that argument for mandamus

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Second, the Sportsmed defendants do not explain how the order's

requirement of destroying those notes "denies discovery," id.

Third, the Sportsmed defendants do not explain how that

destruction requirement "prevents [them] from making a record on [a]

discovery issue so that [this Court] cannot review the effect of the [circuit]

court's alleged error," id. The relevant content of the subject notes is

obvious from the scope of the destruction requirement itself: The notes

summarize confidential communications that were documented by the

psychological records. And in the circuit court, the Sportsmed defendants

had ample opportunity to put on the record their contentions about the

nature and legal relevance of the notes. They do not explain why that

opportunity was insufficient to make a record on this issue. They do not

assert, for example, that it was necessary for them to be allowed to file

with the court the notes themselves.

Accordingly, the Sportsmed defendants have not demonstrated that

review is not raised by the Sportsmed defendants, so we do not consider
it. See Ex parte Drury Hotels Co., 303 So. 3d 1188, 1193 (Ala. 2020)
(" ' "[N]o matter will be considered on ... [... mandamus review] unless
presented and argued in brief." ' " (citations omitted; bracketed language
in Drury)).
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the protective order is subject to mandamus review. 5

IV. Conclusion

Based on the foregoing, we deny the Sportsmed defendants'

petition.

5The dissent contends that the protective order is subject to
mandamus review because it was entered in violation of due process, was
void, and deprived the Sportsmed defendants of jury-trial rights.

The Sportsmed defendants assert the due-process and jury-trial
bases but do not support them with any authority. See Ex parte Showers,
812 So. 2d 277, 281 (Ala. 2001) ("[The mandamus petitioner's] failure to
cite authority supporting her arguments, as required by Rule 21, [Ala. R.
App. P.,] provides this Court an ample basis for refusing to consider those
arguments ...."). Although the dissent attempts to cure that deficiency,
we have repeatedly stated that we will not do a party's citation-finding
work, see Ex parte Drury Hotels Co., 303 So. 3d 1188, 1193 (Ala. 2020);
Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So. 2d 1, 9 (Ala.
2007).

The dissent's argument based on voidness is built on an incorrect
premise. The dissent implicitly assumes that a preliminary injunction
entered in violation of Rule 65, Ala. R. Civ. P., is entered without
jurisdiction and therefore void. But the requirements of Rule 65 are not
jurisdictional. See 11A Charles Alan Wright et al., Federal Practice and
Procedure § 2955 (3d ed. 2013) ("A court's failure to comply with the
prerequisites in Rule 65(d) as to the proper scope or form of an injunction
or restraining order does not deprive it of jurisdiction or render its order
void." (footnote omitted)). Noncompliance with Rule 65's requirements
may be error, but it does not render an injunction void, i.e., void ab initio
on the basis that it was entered without jurisdiction.
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PETITION DENIED.

Mitchell, J., concurs specially, with opinion.

Shaw, Bryan, Mendheim, and Stewart, JJ., concur in the result,
without opinions.

Cook, J., dissents, with opinion, which Sellers, J., joins.

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MITCHELL, Justice (concurring specially).

I read the main opinion to say only that the petitioners have failed

here to satisfy our mandamus test, not that the unauthorized obtainment

of medical records by a medical provider could never fall within the scope

of the Alabama Medical Liability Act, § 6-5-480 et seq. and § 6-5-540 et

seq., Ala. Code 1975. With that understanding, I concur with the main

opinion.

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COOK, Justice (dissenting).

I respectfully dissent. First, I believe that venue is improper in

Jefferson County because, in my opinion, the Alabama Medical Liability

Act ("the AMLA"), § 6-5-480 et seq. and § 6-5-540 et seq., Ala. Code 1975,

applies. The substance of Malik Landen Woodard's claims against Victor

Chin, M.D., and Sportsmed Orthopedic Specialists, P.C. ("the Sportsmed

defendants") -- not the label of his claims -- determines whether the

AMLA applies in this case. Woodard's complaint makes clear that Dr.

Chin sought Woodard's psychological records for the purpose of providing

him medical treatment and then used them for that purpose. It is not

possible to read the complaint and draw any other inference. In fact,

neither Woodard's answer to the Sportsmed defendants' mandamus

petition nor the main opinion denies that Dr. Chin was acting for a

medical reason and was providing medical treatment when he sought and

used those records.

Second, I disagree with the main opinion's conclusion that the

protective order is not subject to mandamus review. Both parties agree

that the requirement that the Sportsmed defendants return or destroy

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Woodard's psychological records and any documents summarizing the

contents of those records should be set aside. Moreover, there is good

reason that both parties agree. The trial court had no power, through

the issuance of a discovery order, to order the return or destruction of

documents that the Sportsmed defendants possessed before the lawsuit

began. Instead, to issue such an order, the trial court was required to

follow the procedures set forth in Rule 65, Ala. R. Civ. P., regarding the

issuance of preliminary injunctions. Here, the trial court issued the

protective order within hours of the filing of the motion requesting it,

without providing the Sportsmed defendants the opportunity to file a

response in opposition to the motion and without complying with the

provisions of Rule 65. 6 In short, the trial court's order is not a "protective

order."

Venue

The main opinion correctly states that if Woodard's claims are

6There is good reason to doubt the authority of the trial court to
order the destruction of the psychological records, even under Rule 65,
given that this would seem impossible to correct if the jury later
determined that Dr. Chin did have proper consent to obtain those records
and acted reasonably. However, we need not reach this issue today.
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governed by the AMLA, they must be adjudicated in the county in which

the alleged breach occurred. See § 6-5-546, Ala. Code 1975 ("[A]ny action

for injury or damages … against a health care provider based on a breach

of the standard of care … must be brought in the county wherein … the

alleged breach … occurred."). The parties appear to agree that the

actionable conduct in this case occurred in Madison County -- where Dr.

Chin treated Woodard -- and not in Jefferson County -- where this action

is now pending.

In his complaint, Woodard pleaded only common-law claims,

including fraud, breach of fiduciary duty, invasion of privacy, and breach

of contract, in connection to Dr. Chin's obtaining his psychological

records. However, as stated correctly in the main opinion:

"AMLA applies to claims (1) against a health-care
provider (2) for 'medical injury ' (3) based on a breach of the
standard of care. See [Ala. Code 1975,] §§ 6-5-540, -543(a),
-544(a), -546, -548(a), (d), -549, -550, -551; Ex parte
Vanderwall, 201 So. 3d 525, 537 (Ala. 2015); Ex parte
Addiction & Mental Health Servs., Inc., 948 So. 2d 533, 535-
36 (Ala. 2006); Jenelle Mims Marsh, Alabama Law of
Damages § 36:45, at 948-49 (6th ed. 2012). 'Medical injury' is
harm that occurs 'because of the provision of medical
services .' Vanderwall, 201 So. 3d at 537-38 …. 'Medical
services ,' in turn, are conduct that the health-care provider
has a 'therapeutic or medical reason,' id. at 538, for engaging

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in."

____ So. 3d at ____ (emphasis added). As further correctly stated in the

main opinion, the burden of showing that a cause of action is controlled

by the provisions of the AMLA is on the movant. The main opinion states

that, in this case, the Sportsmed defendants could have met that burden

and, thus, demonstrated the need to change venue either (1) by

presenting affidavit testimony or (2) by arguing that, "based on the

allegations in Woodard's complaint, no reasonable inference could be

drawn that Dr. Chin had no medical reason for obtaining Woodard's

psychological records." ____ So. 3d at ____. I disagree with the main

opinion's conclusion that the Sportsmed defendants "did neither." ____

So. 3d at ____.

The Sportsmed defendants argued that "there was a medical reason

behind [Dr. Chin's] request" and that Dr. Chin's decision to obtain the

psychological records was a "medically-driven decision." Petition at 17,

19. The materials before this Court show that, in his complaint, Woodard

alleged the following:

• At Dr. Chin's office's request, Woodard executed a "Medical
Records Release," which his office used to obtain the

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records. (Emphasis added.)

• Dr. Chin is a medical doctor, i.e., a licensed physician.

• Dr. Chin sought records for his medical treatment of
Woodard.

• Woodard was under Dr. Chin's medical treatment.

• Dr. Chin used the records in his treatment of Woodard. ("Dr.
Chin's notes for his visit with [Woodward] on November 11,
2019, contain both Dr. Chin's acknowledgment of his receipt
and review, as well as a summary … [of the psychological
records]." (emphasis added)).

I cannot imagine what inference could be drawn from these

allegations other than that the psychological records were sought, and

used, by Dr. Chin for a "medical reason" -- i.e., for the purpose of

providing Woodard with medical treatment.

The complaint does not allege that Dr. Chin acted for any reason

other than to provide Woodard with medical treatment. Further, there

were no such facts pleaded. For instance, there are no facts pleaded

indicating that Dr. Chin had any personal or ulterior motive for obtaining

Woodard's psychological records. Because, as the main opinion agrees, a

venue motion can be based upon the allegations in a complaint, it appears

in this case that Dr. Chin acted because of a "medical reason" and that,

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therefore, Woodard's claims arose under the AMLA.

The main opinion relies heavily on the Ex parte Vanderwall, 201

So. 3d 525, 537 (Ala. 2015), which abandoned the "time and place" test

for determining the application of the AMLA. As both the main opinion

and I have noted, Vanderwall holds that a "medical injury" is harm that

occurs "because of the provision of medical services" and that "medical

services" are conduct that the health-care provider has a "therapeutic or

medical reason" for engaging in. 201 So. 3d at 537-38 (second emphasis

added).

Here, the alleged wrongful conduct by Dr. Chin is his seeking and

then using the psychological records. Those acts are the "provision of

medical services." The records were requested by a medical provider with

the use of a "Medical Records Release" for the purpose of using them in

medical treatment, and they were then used for the purpose of medical

treatment. Here, the specific wrongful conduct (obtaining and using the

records) is part of the provision of medical treatment. This is completely

unlike the facts in Vanderwall, which concerned a sexual assault, where

there obviously was no medical reason for the alleged wrongful conduct.

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Vanderwall did not overrule past precedent in which this Court has

held that the substance and not the form of the complaint is what

determines whether an action is governed by the provisions of the AMLA.

For example, in Allred v. Shirley, 598 So. 2d 1347, 1348-49 (Ala. 1992), a

case cited by the Sportsmed defendants in their mandamus petition, a

patient sought treatment from a physician for an ongoing medical

problem related to the surgical removal and replacement of prosthetic

implants. When the physician attempted to replace the prosthetic

implants and the replacements malfunctioned, the physician allegedly

promised the patient that he would not be responsible for some of the

costs associated with taking corrective measures. However, when the

patient was ultimately charged for those costs, he sued the physician,

asserting tort-of-outrage, conversion, and breach-of-contract claims and

seeking damages for lost wages, physical and emotional pain, and

emotional distress. The trial court granted the physician's motion for a

summary judgment.

On appeal, this Court addressed whether the patient's complaint

alleged a claim of medical malpractice and was, thus, governed by the

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AMLA. In addressing this issue, this Court first noted:

"In Benefield v. F. Hood Craddock Clinic, 456 So. 2d
52 (Ala. 1984), we stated that it is the substance of the action,
not the form of the action, that determines whether it is a
medical malpractice action and whether it is, therefore,
controlled by the provisions of the Alabama Medical Liability
Act. Id. at 54."

598 So. 2d at 1348-49 (some emphasis in original; some added). This

Court then explained:

"[The patient] complains, in substance, about statements
made about his treatment during the course of treatment,
i.e., that prostheses were replaced that he says were in fact
not replaced …. The injuries he alleges flow from the failure
of treatment and from discussions about his treatment …."

Id. at 1349 (some emphasis in original; some emphasis added). Based on

the substance of the claims, this Court concluded that the patient had in

fact pleaded a claim under the AMLA.

Allred is just one of many Alabama cases holding that the substance

and not the form of the complaint controls when determining whether

the AMLA applies. See, e.g., Ex parte Alabama Dep't of Mental Health &

Mental Retardation, 723 So. 2d 11, 13 (Ala. 1998) (recognizing that this

Court has held that "'the substance of an action, rather than its form,

determines whether an action is a medical malpractice action and,

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therefore, controlled by the [AMLA]'" (citation omitted)); Ex parte

Northport Health Serv., Inc., 682 So. 2d 52, 55 (Ala. 1996) (same); and

Ex parte Golden, 628 So. 2d 496 (Ala. 1993) (same).

Here, as alleged in Woodard's complaint, the alleged wrongful

conduct by Dr. Chin is his seeking and then using Woodard's

psychological records. Those records were requested by a medical

provider with the use of a "Medical Records Release" for the purpose of

using them in medical treatment, and they were then used for the

purpose of providing a patient -- Woodard -- with medical treatment.

Therefore, it is reasonable to conclude that the wrongful conduct at issue

was engaged in for a "medical reason" -- i.e., as part of the "provision of

medical services," Vanderwall, 201 So. 3d at 537-38 (emphasis omitted),

and that, like in Allred, the AMLA applies.

The main opinion dismisses Allred and its holding on the basis that

Allred applied the "time and place" test and has, therefore, been

overruled by Vanderwall. I do not agree. First, the Court in Vanderwall

neither stated that it was overruling the "substance over form" standard,

nor stated that it was overruling Allred. Second, Allred does not even

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mention the "time and place" test. Instead, as demonstrated above, the

central issue in Allred was whether the substance of the patient's

complaint alleged a medical-malpractice claim. In reviewing the

allegations made by the patient, this Court, focusing on the causal

connection between the medical treatment and the harm to the patient,

concluded that the patient had alleged such a claim. This Court had no

reason to address the finer points of such an analysis, which might have

included a discussion of the "time and place" test. 7

Woodard does not argue that Dr. Chin lacked a "medical reason" for

seeking and using the records at issue. Instead, he concedes that, "from

7Even in Benefield v. F. Hood Craddock Clinic, 456 So. 2d 52 (Ala.
1984), which was quoted in Allred, this Court made clear that it was not
merely the happenstance that the alleged misrepresentations occurred
during medical treatment that determined whether the AMLA applied.
Instead, the key fact was that the alleged misrepresentations were made
because of medical treatment. See also Ex parte Golden, 628 So. 2d 496,
498 (Ala. 1993) (holding that the fraud claim alleged by the plaintiff was
really a medical-malpractice claim under the AMLA because the
"substance" of that claim was that the misrepresentation made to the
plaintiff induced her to undergo allegedly unnecessary treatment);
Johnson v. McMurray, 461 So. 2d 775, 778 (Ala. 1984) (holding that a
fraudulent-concealment claim about participation of one doctor in
surgery was, in substance, a medical-malpractice claim under the
AMLA).

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a pure standpoint of the patient's medical prognosis," a medical-care

provider's "solicitation or disclosure of confidential information could be

reasonable in a particular case." Answer at 20 (emphasis in original). He

then goes on to argue that Dr. Chin's motive for his actions is not

determinative of whether the AMLA applies. Id. at 18. Woodard argues

that there is a duty of confidentiality a medical-care provider owes to his

or her patient that "may supersede the provider's judgment to disallow a

disclosure [the provider] might reasonably and in good faith think would

be 'good' for the patient or his condition …." Id. at 20 (emphasis added).

Thus, Woodard does not dispute Dr. Chin's medical reason for acting.

Instead, he argues for adding things to the Vanderwall legal standard.

Specifically, Woodard argues:

"Dr. Chin's subjective motive in seeking the records is not
determinative of whether the AMLA applies. Rather, Ex parte
Addiction[ & Mental Health Servs., Inc., 948 So. 2d 533 (Ala.
2006),] teaches that what matters is whether the claim at
issue alleges (1) a 'medical injury' (2) caused by a breach of
the standard of care, that is, the duty to exercise reasonable
care, skill, and diligence in rendering medical treatment.
Even if Dr. Chin considered obtaining the records over
[Woodard's] objection to have been 'medically driven' for the
purpose of facilitating 'medical treatment,' it does not logically
follow: (1) that Dr. Chin's solicitation was itself 'medical
treatment'; (2) that [Woodard's] claim is based on a breach of

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the standard of care; or (3) that [Woodard] suffered 'medical
injury.'"

Answer at 18 (some emphasis in original; some emphasis added).

In support of his "standard," Woodard relies upon Ex parte

Addiction & Mental Health Services, Inc., 948 So. 2d 533 (Ala. 2006).

However, that case predated Ex parte Vanderwall and therefore could

not have engrafted extra requirements for a claim to qualify as an AMLA

claim. Additionally, this alleged standard -- that is, that the "motive" of

the medical-care provider for engaging in conduct is not enough to trigger

the AMLA -- is directly contrary to the standard set in Vanderwall

providing that "medical injury" is harm that occurs "because of the

provision of medical services " and that "medical services" are conduct

that the health-care provider has a "therapeutic or medical reason" for

engaging in. Id. at 537-38 (second emphasis added).

Further, the circumstances surrounding Dr. Chin's actions are

fundamentally different from the circumstances in Ex parte Addiction.

There, records were disclosed to the plaintiff's employer and left

unsecured on the floor of a mental-health facility for anyone to see. Here,

the psychological records were disclosed to a medical-care provider who

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used them for the purpose of providing medical care to the plaintiff.

Thus, here, the records were requested and used because of a "medical

reason." As Vanderwall held (almost a decade after Ex parte Addiction):

"From the foregoing, it is clear that the AMLA is not just concerned with

who committed the alleged wrongful conduct or when and where that

conduct occurred, but also with whether the harm occurred because of

the provision of medical services." 201 So. 3d at 537-38.

Perhaps most troubling, Woodard's new "standard" imposes

obligations upon Dr. Chin based upon his medical relationship with

Woodard and his medical decisions but then takes the position that such

obligations do not trigger the provisions of the AMLA. This is contrary to

our caselaw, including Vanderwall. This further illustrates why the

claims are "because of the provision of medical services." Id. (emphasis

omitted). For example, in his complaint, Woodard alleged as a basis for

his fraud claim (and his breach-of-fiduciary-duty claim) that, "Dr. Chin

and [Woodard], as doctor and patient, had a special relationship of trust

and confidence, giving rise to a duty on the part of Dr. Chin to disclose

all material facts related to [seeking and using the psychological

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records]." (Emphasis added.) He further alleged that Dr. Chin's efforts to

obtain his psychological records were "in breach of Dr. Chin's fiduciary

obligations to [Woodard] as his physician." (Emphasis added.) Woodard

likewise claims that he "entered into a contract for the provision of

medical care and treatment by Dr. Chin" and then claims that this very

contract for "medical care" was breached when Dr. Chin obtained his

psychological records without his consent, thus giving rise to his breach-

of-contract claim. (Emphasis added.) In fact, Woodard even claims that

at least part of his injury was continuing to see Dr. Chin for medical

treatment.

Woodard cannot have it both ways. He wants to subject Dr. Chin

to an enhanced duty because the conduct was undertaken for the purpose

of medical treatment and then wants to disclaim the applicability of the

AMLA. He cannot do this. The standard Dr. Chin must meet "as a

doctor" and "as a physician" -- i.e., the duty he owes his patient -- is a

medical standard of care.

In short, there is simply no way to read the complaint other than to

conclude that Dr. Chin decided that he needed additional treatment

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records to guide his treatment of Woodard and then sought and used

Woodard's psychological records for that purpose. This case is about a

treatment decision made by a physician based upon what he believed was

needed to provide the correct medical treatment to his patient. Whether

he was mistaken in such an assessment is irrelevant to whether the

AMLA applies in the present action. For these reasons, I would grant the

petition as to the venue issue.

Protective Order

As to the second issue -- concerning the protective order -- I disagree

with the main opinion's reasoning and conclusion. In his complaint,

Woodard requested, as final relief, that the psychological records

obtained and used by Dr. Chin (and any documents summarizing the

contents of those records) be returned or destroyed. Later, he filed a

motion for a protective order, which nominally dealt with discovery

matters. Without providing the Sportsmed defendants any opportunity

to respond, the trial court entered an order granting the motion and

providing the exact relief requested in the complaint. The trial court

entered the order the morning after the motion was filed. I am concerned

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for several reasons about the main opinion's acceptance of these

circumstances in concluding that the order is not subject to mandamus

review.

First, I note that both parties have agreed that this aspect of the

"protective order" should be set aside. The main opinion does not address

this crucial fact. Alabama courts routinely accept party stipulations (and

should do so) for the purpose of judicial economy. Although the refusal to

accept stipulations by parties before this Court might be warranted when

an impediment, such as a lack of jurisdiction, prevents us from doing so,

no such impediment exists in this case. 8

Second, contrary to the main opinion's holding, the Sportsmed

defendants have adequately alleged that they are entitled to mandamus

relief on this issue. This Court has recognized that (1) due-process

8The main opinion includes a "cf." citation to Ex parte Tubbs, 585
So. 2d 1301, 1302 (Ala. 1991), for the proposition that "jurisdiction to
review a mandamus petition cannot be conferred by consent of parties."
____ So. 3d at ____. Ex parte Tubbs is fundamentally different from this
case because it was not a mandamus proceeding from a trial court. It
was an original proceeding in this court seeking mandamus relief
directed to the Alabama Highway Department. The main opinion cites
no additional authority for the proposition that providing mandamus
relief here would be barred based on a lack of jurisdiction.
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violations, (2) void orders, and (3) the deprivation of jury-trial rights are

all issues that can be subject to mandamus review. See, e.g., Ex parte

Bashinsky, 319 So. 3d 1240, 1263 (Ala. 2020) (granting mandamus

review because of violation of "procedural due process," which includes

"'the opportunity to present evidence and argument, representation by

counsel, if desired, and information as to the claims of the opposing party,

with reasonable opportunity to controvert them'" (citation omitted)); Ex

parte Sealy, L.L.C., 904 So. 2d 1230, 1232 (Ala. 2004) (stating that

"[m]andamus will lie to direct a trial court to vacate a void judgment or

order"); Ex parte North American Adjusters, Inc., 205 So. 3d 1215, 1216-

17 (Ala. 2016) (recognizing that mandamus review is appropriate for

denial of a right to a jury trial). All three such circumstances are present

in this case.

The "protective order" was issued within hours of Woodard's

motion being filed. There was no hearing provided and no notice that the

order would be issued without the Sportsmed defendants' being given an

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opportunity to respond to the motion. 9 The motion was filed at 3:02 p.m.

on December 9, 2021, and it was granted at 10:29 a.m. the next day --

giving the Sportsmed defendants until Christmas Eve to destroy or

deliver all copies of the psychological records, including any documents

that summarized those records. 10 Under these circumstances, it cannot

be said that the Sportsmed defendants were afforded due process.

Therefore, they are entitled to mandamus relief.

The "protective order" is also a void order, and certainly not a

discovery order, because the trial court had no authority to issue such an

order. A trial court cannot order a party to destroy something it

9For instance, the Sportsmed defendants had no opportunity to
argue to the trial court that the signed "Medical Records Release"
authorized their retention of the records. Woodard claims that the
"Medical Records Release" is not effective for a number of reasons -- e.g.,
because he revoked it; because a portion of the release was blank; because
he does not believe it covers these types of records; because he did not
understand it, etc. I make no judgment on the validity of any of those
arguments; however, to say the least, the validity of the release is a
disputed issue of material fact at this point, yet the order was entered
without the opportunity for the Sportsmed defendants to even make that
argument.
10Effectively, this order is a destruction order because, based upon
the briefing, the records appear to be electronic records.
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possessed before the commencement of a lawsuit absent its issuing an

injunction in compliance with Rule 65, Ala. R. Civ. P. (or without actually

adjudicating the claim). See Ex parte Waterjet Sys., Inc., 758 So. 2d 505,

507 (Ala. 1999) (after trial court granted preliminary injunction in trade-

secrets case to, among other things, require former employee to return

documents allegedly taken when former employee left employment but

former employee ultimately prevailed at trial, this Court ordered

injunction bond to be used to pay damages incurred because of issuance

of preliminary injunction); HB&G Bldg. Prods. Inc. v. Digger Specialties,

Inc., Civil Action No. 2:22-cv-329-ECM, June 3, 2022 (M.D. Ala. 2022)

(not reported in Federal Supplement) (issuing preliminary injunction

requiring defendant to "sequester, isolate, and maintain" allegedly stolen

information but refusing to order return of information); Pareto Health

(AL), LLC v. WeCare TLC, LLC, Case No. 2:21-cv-00530-AMM, Apr. 23,

2021 (N.D. Ala. 2021) (not reported in Federal Supplement) (refusing to

issue temporary restraining order requiring transfer of "books and

records" upon ending of vendor relationship and noting that, when a

"'preliminary injunction goes beyond the status quo and seeks to force

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one party to act, it becomes a mandatory or affirmative injunction and

the burden placed on the moving party is increased'" (quoting Mercedes-

Benz U.S. Int'l, Inc. v. Cobasys, LLC, 605 F. Supp. 2d 1189, 1196 (N.D.

Ala. 2009), citing in turn Exhibitors Poster Exch., Inc. v. National Screen

Serv. Corp., 441 F.2d 560, 561 (5th Cir. 1971) (recognizing that, when

plaintiff requests "a mandatory preliminary injunction, such relief should

not be granted except in rare instances .…"))). Because the trial court

lacked any clear authority to issue such an order, the "protective order"

is void, and, thus, the Sportsmed defendants are entitled to mandamus

relief.

Additionally, the trial court has not adjudicated whether Dr. Chin

has a legal right to the psychological records. There is a jury-trial demand

in this case. Disputed factual questions must normally be answered by

a jury, and the jury must answer them before any order requiring

destruction of such records. The United States Supreme Court long ago

held that a court may not order equitable relief (except on a preliminary

injunction) before a jury has determined underlying facts in cases in

which the jury-trial right applies. See Dairy Queen, Inc. v. Wood, 369

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U.S. 469, 479 (1962) ("Since these issues are common with those upon

which respondents' claim to equitable relief is based, the legal claims

involved in the action must be determined prior to any final court

determination of respondents' equitable claims."). Because the

Sportsmed defendants' right to a jury trial on the issue whether the

records obtained and used by Dr. Chin should be returned or destroyed

has been violated, they are also entitled to mandamus relief.

Third, to the extent that the main opinion claims that the

Sportsmed defendants are not entitled to mandamus relief from the

"protective order" because they cannot demonstrate irremediable harm,

that conclusion is mistaken. Destruction, by definition, is "irremediable."

Additionally, the main opinion quotes Ex parte Mobile Infirmary Ass'n,

279 So.3d 1129, 113 (Ala. 2018), for the proposition that mandamus

review is appropriate only if the "'outcome of the case has been all but

determined.'" ____ So. 3d at ____. Here, the "protective order" requires

the Sportsmed defendants to either give the records to Woodard or

destroy them. This is the very relief sought in the complaint. Thus, the

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"outcome of the case has been all but determined" by this remedy. 11

Fourth, the main opinion concludes that the Sportsmed defendants

have not shown how the psychological records are relevant to their

defense. This conclusion ignores the scope of the "protective order," which

pertains to all records in the Sportsmed defendants' possession that

"contain[ed], summarize[d] the substance of, or were created in

conjunction with" the confidential psychological communications.

11Even if all of my analysis regarding the availability of mandamus
relief with respect to the "protective order" is mistaken, we can still reach
a just and proper result. This Court has a long history of treating
mandamus and appeal interchangeably when justice so demands. See,
e.g., Kirksey v. Johnson, 166 So. 3d 633 (Ala. 2014) (treating a cross-
appeal as a petition for a writ of mandamus because it questioned the
subject-matter jurisdiction of the probate court and this Court felt that
such an issue was important to materially advancing the litigation);
Slamen v. Slamen, 254 So. 3d 188, 192 n.3 (Ala. 2017) (treating an appeal
as a petition for a writ of mandamus "[f]or expedience"); Ex parte
Sanderson, 263 So. 3d 681, 685 (Ala. 2018) (treating an appeal from a
denial of a motion for a summary judgment as a petition for writ of
mandamus).

Here, the Sportsmed defendants filed a mandamus petition rather
than appealing the "protective order" because the trial judge labeled it a
"protective order." Had the trial judge properly labeled this an
injunction, the Sportsmed defendants would have had a right of
immediate appeal. See Rule 4(a), Ala. R. App. P. We should certainly
afford the Sportsmed defendants the right that they would have had if
the trial judge had correctly labeled his order.
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(Emphasis added.) As the complaint expressly alleges, Dr. Chin

summarized Woodard's psychological records in his treatment records.

Thus, to comply with the order, Dr. Chin would have to destroy all or at

least part of his own treatment records for Woodard.

Moreover, it is clear that the content of the records were the reason

Dr. Chin believed that he needed them for his treatment of Woodard. At

the very least, those records are relevant to the Sportsmed defendants to

help them prove that Dr. Chin's decision to obtain the psychological

records to assist him in treating Woodard was valid. Therefore, under

these circumstances, the Sportsmed defendants are entitled to

mandamus relief.

For these reasons, I would grant the petition as to the protective

order.

Sellers, J., concurs.

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