Alabama Medical Malpractice Summary
Statutes of Limitations
All actions against health care providers must be commenced within two years after the act or omission giving rise to the claim; provided, that if the cause of action is not discovered and could not reasonably have been discovered within the two-year period, then the action may be commenced within six months from the date of such discovery or the date of learning of facts that would reasonably lead to such discovery, whichever is earlier. Ala. Code § 6-5-482 (1993). Although this statute of limitations is subject to tolling for minority or disability, in no event may an action be brought more than four years after the act or omission, except that a minor who is under the age of four at the time of the act or omission accrues has until his eighth birthday to commence an action. Id. The constitutionality of the statute has been upheld. Barlow v. Humana, Inc., 495 So. 2d 1048 (Ala. 1986).
A wrongful death action must be brought within two years after the decedent’s death. Ala. Code §§ 6-2-38 and 6-5-410 (1993). This “statute of creation” is not subject to any tolling provisions and applies in wrongful death cases even if the cause of death is medical malpractice. Cofer v. Ensor, 473 So. 2d 984 (Ala. 1985); McMickens v. Waldorp, 406 So. 2d 867 (Ala. 1981)
Contributory or Comparative Negligence
Alabama adheres to the pure doctrine of contributory negligence. A claimant’s proximate contributory negligence will bar recovery completely. Although this is now a minority view, the Alabama Supreme Court is unlikely to alter this doctrine judicially. When presented with a direct challenge to the continued application of contributory negligence as a complete defense, it said:
We have heard hours of oral argument; we have read numerous briefs; we have studied cases from other jurisdictions and law review articles; and in numerous conferences we have discussed in depth this issue and all of the ramifications surrounding such a change. After this exhaustive study and these lengthy deliberations, the majority of this Court, for various reasons, has decided that we should not abandon the doctrine of contributory negligence, which has been the law in Alabama for approximately 162 years.
Williams v. Delta International Machinery Corp., 619 So. 2d 1330, 1332 (Ala. 1993).
Joint and Several Liability
Where the actions of two or more tortfeasors combine to produce an indivisible injury, each tortfeasor’s act is considered to be the proximate cause of the injury, and each tortfeasor is jointly and severally liable for the entire injury and judgment. General Motors Corporation v. Edwards, 482 So. 2d 1176 (Ala. 1985). In the case of woman who bled to death four days after a tooth extraction, this principal was used to hold the dentist jointly liable with the physicians who negligently treated her bleeding gums two and three days after the dental work. Looney v. Davis, Case No. 1951825, 1998 WL 57736 (Ala. Feb. 13, 1998).
The rule in Alabama is that, with some exceptions, joint tortfeasors are not entitled to indemnity or contribution. Crigler v. Salac, 438 So. 2d 1375 (Ala. 1983). An important exception for medical malpractice cases is that one tortfeasor can seek indemnity against another if the other’s negligence was the primary or proximate cause of the injury. Mikkelsen v. Salama, 619 So. 2d 1382 (Ala. 1993) (allowing the defendant, the driver of an automobile involved in an accident, to claim indemnity from a physician who failed to warn her not to drive while taking medication he prescribed).
A hospital is not vicariously liable under the doctrine of respondeat superior for the acts or omissions of physicians who are not its employees or agents. Humana Medical Corporation v. Traffanstedt, 597 So. 2d 667 (Ala. 1992). However, Humana and a series of later opinions have stated that it is possible to hold hospitals liable for the negligent conduct of physicians under a theory of “corporate liability,” defined as liability based on a hospital’s independent negligence in appointing an incompetent or unfit physician to its staff or failing to properly monitor or supervise members of its staff. None of the major published cases has found the necessary facts to be proven and actually upheld liability based on that theory. E.g., Golden v. Autauga Medical Center, 675 So. 2d 418 (Ala. 1996); Parker v. Collins, 605 So. 2d 824, 828 (Ala. 1992). Moreover, there are no published cases in which a hospital’s liability is based on a physician’s ostensible or apparent agency.
“In medical malpractice cases, the plaintiff must prove negligence through the use of expert testimony, unless an understanding of the doctor’s alleged lack of due care or skill requires only common knowledge or experience.” Monk v. Vesely, 525 So. 2d 1364, 1365 (Ala. 1988). The exception applies only to such situations as a foreign object left after surgery or an injury remote from the part of the body being treated. Dews v. Mobile Infirmary Ass’n, 659 So. 2d 61 (Ala. 1995). A health care provider may testify as an expert witness in any action against another health care provider based on a breach of the standard of care only if he or she is “similarly situated,” as defined by statute. Ala. Code § 6-5-548 (Supp. 1997). This means, in part, that expert witnesses against a physician accused of negligence must be certified in the same specialty and must have practiced within the previous year. Id.; Malcolm v. King, 686 So. 2d 231 (Ala.1996).
Although the legislature passed a damage cap in 1987, the Alabama Supreme Court held it to be unconstitutional. Moore v. Mobile Infirmity Ass’n, 592 So. 2d 156 (Ala. 1991). The statute, which has never been repealed, provides that a medical malpractice plaintiff’s recovery for non-economic losses, including punitive damages, may not exceed $400,000. Ala. Code § 6-5-544 (1993). The Court has also held to be unconstitutional a $250,000 cap on punitive damages, Ala. Code § 6-11-21 (1993), applicable to all cases except wrongful dealth and those alleging a pattern of intentional wrongful conduct, actual malice, or defamation. Henderson v. Alabama Power Co., 627 So. 2d 878 (Ala. 1993).
Damages for wrongful death, including wrongful death caused by medical malpractice, are awarded in Alabama in a manner unique to that state. Although Alabama’s wrongful death statutes, Ala. Code § 6-5-391 (Supp. 1997) (for minors) and § 6-5-410 (1993), do not so state, a series of judicial decisions, beginning more than a century ago, holds that all damages in wrongful death cases are considered to be punitive, rather than compensatory. Savannah & Memphis Railroad v. Schearer, 58 Ala. 672, 680 (1877); Tatum v. Schering Corp., 523 So. 2d 1042 (Ala. 1988); Killough v. Jahandarfard, 578 So. 2d 1041 (Ala. 1991) (minor decedent). These damages may be awarded in cases of simple negligence, with no requirement of willful or wanton behavior by defendants. Black Belt Wood Co. v. Sessions, 514 So. 2d 1249 (Ala. 1986). They are assessed jointly and severally against all liable defendants, regardless of their degrees of culpability, and with no right of contribution. Id. Despite the peculiarity of statutes that permit the award of punitive damages for simple negligence, these have been upheld as constitutional under state law, in Killough, and federal law. Louis Pizitz Dry Goods Co. v. Weldell, 274 U.S. 112 (1927).
In 1987, the legislature attempted to limit the damages that could be awarded against a health care provider for wrongful death by establishing a $1,000,000 limit, to be adjusted annually for inflation. Ala. Code § 6-5-547 (1993). This has been held to be unconstitutional. Smith v. Schulte, 671 So. 2d 1334 (Ala. 1995), cert. denied, 517 U.S. 1220 (1996).
Statutory Cap on Attorneys’ Fees
Alabama law does not place a cap on attorneys’ fees in medical malpractice actions.
Alabama now has three periodic payment statutes, one of them unconstitutional. The most recent and elaborate is specific to medical malpractice cases. Ala. Code § 6-5-543 (1993). It requires juries to distinguish past from future damages. If the latter exceed $150,000, the judge is to reduce them to present value, allow $150,000 plus the attorney fee part to be paid in cash, and then enter an order for the periodic payment of the remainder, backed by an insurance policy or other security. Payments are to terminate on death, except those for lost wages, which continue during the life of a non-remarried spouse or minor children. Anything left over reverts to the judgment debtor. Id.
A similar statute, not specific to medical malpractice, requires the periodic payment of that portion of a future damages award in excess of $150,000, but has no reduction of future damages to present value and no reversion to the judgment debtor. Ala. Code § 6-11-3 (1993). It has been held to be unconstitutional for reasons that appear to depend on these differences. Clark v. Container Corp. of America, 589 So. 2d 184 (Ala. 1991). A much older statute allows a judge, at his discretion, to order a judgment against a medical institution or a physician that exceeds $100,000 to be paid in monthly installments calculated to provide the claimant with lifetime income. Ala. Code § 6-5-486 (1993).
Collateral Source Rule
The Medical Liability Act of 1987 partially abolished the collateral source rule in medical malpractice cases by allowing the introduction of evidence that the claimant’s medical or hospital expenses had been or would be paid. Ala. Code § 6-5-545 (1993). A very similar statute, Ala. Code § 12-21-45 (1995), not confined to medical malpractice, has been held to be unconstitutional, and it is a fair implication of that decision that § 6-5-545 is unconstitutional as well. American Legion Post No. 57 v. Leahey, 681 So. 2d 1337 (Ala. 1996). However, no judicial opinion so stating has yet been published.
In Alabama, pre-judgment interest is awarded only when the amount in question is a liquidated sum. Alfa Mutual Insurance Co. v. Beard, 597 So. 2d 664 (Ala. 1992) (denying pre-judgment interest on a recovery for personal injury under uninsured motorist coverage). A liquidated sum is one that is certain or capable of being ascertained by mere computations. When damages must be determined by a jury as an issue of fact, the claim is not subject to pre-judgment interest. Richards v. General Motors Corporation, 461 So. 2d 825 (Ala. Civ. App. 1984). There are no published cases in which pre-judgment interest is awarded for ordinary personal injuries.
Patient Compensation Funds and Physician Insurance
Alabama does not have a patient compensation fund or a program of state-sponsored liability insurance for physicians.
Article I, section 14 of the Alabama Constitution of 1901 provides that the State of Alabama may never be made a defendant in any court of law or equity. The absolute immunity provided by this section extends to state universities, including affiliated hospitals. Sarradett v. University of South Alabama Medical Center, 484 So. 2d 426 (Ala. 1986). This section also prohibits suits against state officers and agents in their official capacity when a result favorable to the claimant would directly affect a contract or property right of the state. Stark v. Troy State University, 514 So. 2d 46 (Ala. 1987). Nevertheless, this section does not prohibit an action against state employees for personal injury based on their negligent conduct in performing non-discretionary or ministerial functions, even when committed in the line and scope of employment. DeStafney v. University of Alabama, 413 So. 2d 391 (Ala. 1981) (allowing a lawsuit against a playground supervisor who, through negligent supervision, allowed a child to be injured in a fall). The reported decisions involving doctors all appear to be in cases arising out of the treatment of mental patients, and hold this to be “discretionary” and thus immune. Smith v. Arnold, 564 So. 2d 873 (Ala. 1990). The most interesting of these extends immunity to a resident enrolled in a program at a state university for negligence allegedly committed while serving a rotation at a private psychiatric hospital. Harper v. Gremmell, 703 So. 2d 346 (Ala. 1997).
Unlike the state and its agencies, counties do not enjoy immunity from actions for the negligent acts of their officers and employees, except when they are carrying out a state function and share in the state’s immunity. Rutledge v. Baldwin County Commission, 495 So. 2d 49 (Ala. 1986). A cause of action against a county must be presented to the county commission within twelve months of the accrual of the action (or the lifting of a disability). Ala. Code §§ 6-5-20 (1993) and 11-12-8 (1989).
A municipality is liable for an injury caused by the neglect, carelessness, or unskillfulness of its employees acting within the scope of their employment. Ala. Code § 11-47-190 (Supp. 1997). Rich v. City of Mobile, 410 So. 2d 385 (Ala. 1982). All claims against a municipality grounded in tort are barred unless presented to the clerk within six months of the accrual of the action. Ala. Code § 11-47-23 (1992). The municipality must defend its employees if sued. Ala. Code § 11-47-24 (1992).
County and municipal liability for bodily injury or death is limited to $100,000 per claimant and $300,000 per occurrence. Ala. Code § 11-93-2 (1994) and § 11-47-190 (Supp. 1997). All agencies of state, county, and municipal government are immune from liability for punitive damages, except in medical malpractice cases. Ala. Code § 6-11-26 (1993).
A Good Samaritan Act immunizes from liability emergency personnel, including doctors and nurses, providing aid at the scene of an accident or advising those on the scene. Ala. Code § 6-5-332 (1993). A new act, scheduled to take effect July 1, 1998, provides immunity for those providing free care to patients at or patients referred from established free medical clinics. These must be community-based clinics not providing the services of a hospital or ambulatory surgery center. The act does not cover interns or residents and does not immunize willful or wanton misconduct. Volunteer Medical Professional Act, H.B. 26, 1998 Ala. Acts ____ (April 14, 1998).
Alabama law allows for the reference of a medical malpractice action to an arbitrator only upon the written agreement of the parties. Such an agreement is binding and irrevocable. Ala. Code § 6-5-485 (1993).
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Revision Date: May 17, 1998