Opinion
1901211, 1901271.
February 14, 1992.
Petition for writ of Certiorari to the Court of Civil Appeals (2900029). Appeal from the Circuit Court, Montgomery County, Nos. CV-89-1458 and CV-90-19, William R. Gordon, Judge.
G. Dennis Nabors and Sandra R. Segal of Anderson Nabors, P.C., Montgomery, for petitioner Alabama State Health Planning Agency.
J. Donald Reynolds, Montgomery, for petitioner DCH Healthcare Authority.
Sydney Lavender and Richard J. Brockman of Johnston, Barton, Proctor, Swedlaw Naff, Birmingham, and Walter R. Byars of Steiner, Crum Baker, Montgomery, and Joe W. Campbell of Lanier, Ford, Shaver Payne, Huntsville, for petitioners Baptist Medical Centers and Hospital Authority of the City of Huntsville.
John T. Mooresmith and J. Timothy Coyle of John T. Mooresmith, P.C., and Michael W. Atchison of Starnes Atchison, Birmingham, for respondents Alabama Renal Stone Institute, Inc. and Springhill Memorial Hosp.
George E. Hutchinson, Montgomery, for amicus curiae Alabama Ass'n of Home Health Agencies, Inc.
George L. Beck, Jr. and W. Terry Travis, Montgomery, for amicus curiae Alabama Nursing Home Ass'n, Inc.
WRIT QUASHED AS IMPROVIDENTLY GRANTED.
ALMON, SHORES, ADAMS, HOUSTON and INGRAM, JJ., concur.
MADDOX and STEAGALL, JJ., dissent.
I respectfully dissent from the majority's decision to quash the writ in this case. The hospitals' use of the mobile extracorporeal shockwave lithotripter to treat kidney stones does not constitute a "new institutional health service" under Ala. Code 1975, § 22-21-263(a)(4). The Court of Civil Appeals specifically stated that "[t]here is no dispute that the Hospitals here have a history of providing their patients with some form of a kidney stone treatment." Alabama Renal Stone Institute, Inc. v. State Health Planning Agency, 594 So.2d 106, (Ala.Civ.App. 1991). Nevertheless, that court went on to conclude that "the Hospitals' desire to use the Medstone Lithotripter to perform kidney lithotripsy is a procedure which has not been offered on a regular basis at the Hospitals." 594 So.2d at 108.
The dispositive issue here, as it was in Koch v. Houston County Hospital Board, 432 So.2d 1309 (Ala.Civ.App. 1983), is whether the hospitals were "capable of providing" kidney stone treatment prior to using the lithotripter for that purpose. 432 So.2d at 1312. The Court of Civil Appeals was careful in Koch to distinguish between the capability of providing a service and the utilization of that service in holding that the purchase and use of an EKG pressure recorder fell outside the definition of "new services." The holding in this case cannot be reconciled with the holding in Koch and, therefore, I respectfully dissent.
MADDOX, J., concurs.