# Tucker v. Tombigbee Healthcare Authority

> Supreme Court of Alabama · February 7, 2014 · 153 So. 3d 734

URL: https://www.frixlaw.com/law-library/cases/4816410

## Case

- **Full name:** Ex parte Gerald HODGE, M.D. (In re David Tucker, Jr., as administrator ad litem for the Estate of Gertha R. Tucker, and David Tucker, Jr., individually v. The Tombigbee Healthcare Authority). Ex parte Tombigbee Healthcare Authority d/b/a Bryan W. Whitfield Memorial Hospital (In re David Tucker, Jr., as administrator ad litem for the Estate of Gertha R. Tucker, and David Tucker, Jr., individually v. The Tombigbee Healthcare Authority)
- **Court:** Supreme Court of Alabama
- **Decided:** February 7, 2014
- **Citations:** 153 So. 3d 734
- **Precedential status:** Published
- **Opinion:** Dissent by Moore
- **Judges:** Bolin, Bryan, Moore, Murdock, Parker, Shaw, Stuart, Wise
- **Cited by:** 39 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4816410

## How later opinions describe it (automated extraction)

- holding that an appeal from a final judgment was an inadequate remedy where the defendants were "faced with the extraordinary circumstance of having to further litigate this matter after having demonstrated from the face of the plaintiff's complaint a clear legal right to have…
- holding that patient suffered actionable legal injury, and period of repose began to run, when physician left hemostat clamp in patient’s body, regardless of when or to what extent the complications from the negligent act would be discovered
- noting that " 'the very reason for the limited exceptions we have carved out to the general rule that interlocutory denials of motions to dismiss and motions for a summary judgment cannot be reviewed by way of a petition for a writ of mandamus is that there are certain defense…

## Opinion text

MOORE, Chief Justice
(dissenting).
I respectfully dissent. Dr. Gerald Hodge and Tombigbee Healthcare Authority d/b/a Bryan W. Whitfield Memorial Hospital separately petition this Court for *752 a writ of mandamus from the denial of a motion for a summary judgment. “The general rule is that ‘a writ of mandamus will not issue to review the merits of an order denying a motion for a summary judgment.’ ... In all but the most extraordinary cases, an appeal is an adequate remedy....” Ex parte Jackson, 780 So.2d 681, 684 (Ala.2000). This Court has created rare exceptions such as “when the trial court denies a motion for a summary judgment that is based on an argument that governmental immunity bars the plaintiffs claim.” Id. No such exception applies in the case before us. The majority opinion creates a new exception, however, for cases involving a statute of limitations. Not only does this new exception undermine the general rule that mandamus will not issue to review an order denying a motion for a summary judgment, but it also undermines the nature and function of mandamus as an “extraordinary remedy.” Ex parte Showers, 812 So.2d 277, 281 (Ala. 2001) (emphasis added); see generally Rule 21, Ala. R.App. P.
Although this Court has constitutional and statutory authority to issue writs to superintend lower courts under Ala. Const. 1901, Art. VI, § 140, and § 12-2-7(3), Ala. Code 1975, it abuses that authority when it purports to invent, change, and modify the laws over time so that a petition for a writ of mandamus is no longer only for “emergency and immediate appellate review of an order that is otherwise interlocutory and not appealable.” Rule 21(e)(4), Ala. R.App. P. The majority opinion references several cases in which this Court created new exceptions to general rules regarding mandamus relief; those references supposedly justify yet another exception to our rules regarding mandamus relief. No doubt this Court will, at some later date, reference the majority opinion in this case to justify yet another exception to those rules. At some point, there will be so many exceptions that the general rule will no longer exist. Perhaps that moment is already upon us.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4816410. Public record. Not legal advice.