The Law of Medical Malpractice in Alabama: A Survey of Basic Considerations
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The Law of Medical Malpractice in Alabama:
A Survey of Basic Considerations
This article provides an overview of Alabama medical malpractice law. In Alabama, the Legislature has enacted some tort reform legislation designed to impose obstacles in the path of medical malpractice plaintiffs, such as limiting the scope of discovery. But when plaintiffs are successful in proving their case, they can recover sizable monetary awards because the Alabama Supreme Court has struck down the limit or “cap” on pain and suffering damages as unconstitutional.
Because it is useful for laypersons who have been injured by substandard healthcare treatment to have some understanding of the law, the article will describe Alabama law in plain language with minimal use of legal jargon, so that the material is accessible to non lawyers as well as legal practitioners.
Section I below summarizes broad principles and concepts. Sections II through XII examine some of the mechanics of filing and litigating a medical malpractice action in Alabama.
To jump directly to any topic in the Table of Contents, simply click on it.
I. Overview of Basic Principles and Concepts
II. Filing Deadlines for Medical Malpractice Claims
III. Presuit Notice and Other Requirements
IV. Complaint Elements
V. Scope of Discovery
VI. Immunities and Limitations on Liability
VII. Medical Expert Witnesses
VIII.Contributory Negligence
IX. Limitations on Damages
X. Limitations on Attorneys Fees
XI. Patient Compensation Funds
XII. Apologies and Sympathetic Gestures
XIII.Disclaimer
I. Overview of Basic Principles and Concepts
In Alabama, a medical malpractice plaintiff must prove that the healthcare provider “failed to exercise such reasonable care, skill, and diligence as other similarly situated health care providers in the same general line of practice ordinarily have and exercise in a like case.”Ala. Code § 6-5-548(a).
In particular, the plaintiff must demonstrate: (1) the appropriate standard of healthcare; (2) the healthcare provider’s deviation from that standard; and (3) a causal connection between the healthcare provider’s act or omission and the injury sustained by the plaintiff.Ordinarily, a plaintiff makes these showings by presenting expert medical testimony. Morgan v. Publix Super Markets, Inc., 138 So.3d 982 (Ala.2013); Anderson v. Alabama Reference Laboratories, 778 So.2d 806 (Ala.2000).
Alabama’s main statute addressing medical malpractice, also known as medical negligence, is the Alabama Medical Liability Act (AMLA), as amended.
II. Filing Deadlines for Medical Malpractice Claims
Basic Time Limit
Under the AMLA, the time limit for filing a medical malpractice lawsuit is generally two years. Also known as a“statute of limitations,”the time limit begins running at the time of the act or omission giving rise to the malpractice claim. Ala. Code § 6-5-482.
Hidden Injuries
There are certain situations in which the two-year time limit can be extended. If the injury remained hidden from view (e.g., a doctor leaves a sponge inside a patient) and the healthcare provider’s negligent conduct could not reasonably have been discovered within two years, the plaintiff is entitled to have the time limit extended for an additional two years, so long as suit is filed within six months from the date of discovering the relevant facts. Id.
But even in hidden injury situations,the suit generally must be commenced within at most four years. This outer limit for filing suit is known as a “period of repose.”A good illustration of how the four-year period of repose operates is Ex parte Hodge, where a physician allegedly left a hemostat clamp in a patient’s body. The Alabama Supreme Court ruled that the plaintiff needed to file suit within four years from the date the operation was performed, regardless of when the complications from the negligent act were discovered.The patient’s inability to discover the injury did not extend the last date for filing suit beyond four years. 153 So. 3d 734 (Ala. 2014). See also Cutler v. University of Alabama Health Services Foundation, P.C., No. 1150546,2016 WL 3654760 (Ala. July 8, 2016); Ex parte Sonnier, 707 So. 2d 635 (Ala. 1997); Trammer v. Bernstein, 596 So.2d 572 (Ala.1991).
Injured Patients Who Are Minors
The time limit for filing suit is somewhat longer if the patient is a child. A minor normally always has four years to bring a medical malpractice claim. Health Trust, Inc. v. Cantrell, 689 So.2d 822 (Ala.1997). And a minor who was under four years of age at the time of the injury has until his or her eighth birthday to file a malpractice claim. Ala. Code § 6-5-482(b).
Wrongful Death Claims
In cases where a loved one dies allegedly as a result of substandard healthcare treatment, a different provision governs. A suit may be brought within two years after the individual’s death, so long as the deceased would have had a viable medical malpractice claim at the time of his or her death.Ala. Code § 6-5-410. The two-year time period runs from the date of the individual’s death, not from the date of the healthcare provider’s act or omission. There is no provision in wrongful death cases for extending the statute of limitations for an extra two years based on the difficulty of discovering the negligent conduct.See Johnson ex rel. Estate of Darnell v. Brookwood Medical Center, 946 So.2d 849 (Ala.2006); Okeke v. Craig, 782 So.2d 281 (Ala. 2000).
III. Presuit Notice and Other Requirements
Presuit Notice
Unlike some other states, Alabama does not statutorily require a plaintiff to provide advance notice to a healthcare provider before filing a malpractice suit.
Medical Expert Affidavits
And unlike some other states, Alabama does not require a malpractice claimant, at the very beginning of the lawsuit, to present a medical expert opinion certifying that the claim has some merit.
But even though there is no such mandate, it behooves a plaintiff to be on sure footing when filing a lawsuit. For one thing, the AMLA permits healthcare providers to sue for malicious prosecution asserting they were subject to an obviously unfounded suit. Ala. Code § 6-5-550;Huggins v. Goldstein, 918 So. 2d 934 (Ala.Civ.App.2005).
Arbitration
Arbitration is a method of resolving disputes outside of a courtroom. The parties agree they will have their dispute heard by an arbitrator, rather than a judge and jury, and will follow less formal procedures than would apply in court.If the parties agree to arbitrate, the AMLA sets forth certain rules and procedures that will govern the arbitration.Ala. Code § 6-5-485.
IV. Complaint Elements
Alabama has adopted stringent requirements for medical malpractice complaints. A plaintiff filing such a claim must include in his or her written complaint “a detailed specification and factual description of each act and omission” upon which the lawsuit is based. Ala. Code § 6-5-551. If the plaintiff fails to include adequately detailed information, the court can dismiss the lawsuit.
Importantly, the AMLA’s requirement for complaint specificity also impacts the litigation’s discovery phase (the phase of the lawsuit during which each party demands that the other parties share relevant information). A plaintiff is prohibited from conducting discovery with regard to “any other act or omission” besides those identified in the complaint. Id.; see Ex parte Mendel, 942 So. 2d 829 (Ala. 2006);Ex parte Vanderwall, 201 So.3d 525 (Ala. 2015).
Due to this provision of the AMLA, it is crucial for a malpractice plaintiff to file a detailed complaint, and amend it promptly if new or different acts or omissions come to light.
V. Scope of Discovery
As noted immediately above, during the discovery phase of the lawsuit a plaintiff is barred from demanding information relating to “any other act or omission” besides those identified in the complaint.Ala. Code § 6-5-551. To see how this provision can impact the scope of discovery, consider Ex parte Anderson, 789 So.2d 190 (Ala.2000). There, the plaintiff wanted the defendant physician to answer questions about past incidents of alleged malpractice committed by him, but the physician refused. The Alabama Supreme Court agreed with the physician that he did not need to disclose any such past incidents, even similar ones, because the AMLA’s meaning “could not be clearer.” Any “other acts or omissions” besides those specified in the complaint are exempt from discovery, including information regarding any past acts of alleged malpractice.“Discovery of any incidents of malpractice other than those specifically alleged in the complaint is precluded,” the high court summarized, citing Ala. Code § 6-5-551.
VI. Immunities and Limitations on Liability
Emergency Medical Care
While some states have adopted statutes that set a lower standard of health care for emergency healthcare providers, recognizing that emergencies allow less time to make informed treatment decisions, Alabama has no statute of this kind. In cases involving emergency treatment, Alabama courts employ the generally applicable standard of care set forth in Ala. Code § 6-5-548(a), which requires a healthcare provider to “exercise such reasonable care, skill, and diligence as other similarly situated health care providers in the same general line of practice ordinarily have and exercise in a like case.”SeeCrutcher v. Williams, 12 So. 3d 631 (Ala.2008).
County Hospitals
Because governments generally cannot be sued unless they waive their immunity, immunity issues can arise in medical malpractice suits brought against doctors, nurses, and other healthcare providers who are employed by government-owned hospitals or entities. See generally Ex parte Cranman, 792 So. 2d 392 (Ala. 2000).
VII. Medical Expert Witnesses
Must Be “Similarly Situated”
Medical malpractice cases depend heavily on the testimony of medical experts, who aid the court and jury in understanding the standard of care, whether it was breached, and whether the breach caused the plaintiff’s injury. The AMLA imposes certain threshold requirements on who may serve as a medical expert witness, requiring an expert to be a “similarly situated health care provider.”Ala. Code § 6-5-548.
Being similarly situated does not mean the medical expert witness must be licensed in Alabama; the expert can be licensed in “this or some other state.”Id. But the expert witness’s training and experience must resemble that of the defendant healthcare provider. The specific rules governing who is “similarly situated” enough to be permitted to serve as an expert witness depend on whether the defendant healthcare provider is board certified or not.
When Defendant Is Board Certified
If the defendant healthcare provider is board certified, an expert medical witness testifying in the case must be board certified in the same specialty. In addition, the expert must have practiced in this specialty during the preceding year.Ala. Code § 6-5-548(c), (e).
The Alabama courts strictly enforce these requirements.In Hegarty v. Hudson, a board-certified obstetrician was not permitted to testify to the standard of health care expected when delivering a baby through Cesarean section, because the defendant in the lawsuit was a board-certified family medicine physician, rather than an obstetrician. “The fact that there is some overlap or commonality in the practice of a board-certified family practitioner and a board-certified Ob–Gyn (i.e., that both were trained to perform C-sections) is irrelevant,” the Alabama Supreme Court explained.The expert witness needed to be board certified in the same specialty, and here the two physicians practiced in different specialties. 123 So. 3d 945 (Ala. 2013).
In another case,Carraway v. Kurtts, both the defendant and the expert witness were board certified in family practice medicine, but it was unclear whether the expert witness had actually practiced in that specialty area in the preceding year. The expert’s curriculum vitae indicated she had recently worked in areas such as palliative care, but not necessarily family medicine.Consequently, even though she was board certified in the correct specialty, the expert witness was not permitted to testify to the applicable standard of care, and ultimately the plaintiff lost the case on summary judgment.987 So.2d 512 (Ala.2007). See also Smith v. Fisher, 143 So.3d 110 (Ala.2013); Springhill Hospitals, Inc. v. Critopoulos, 87 So. 3d 1178 (Ala. 2011).
When Defendant Is Not Board Certified
The rules about who can serve as a medical expert witness are somewhat more flexible if the defendant healthcare provider is not board certified. Ala. Code § 6-5-548(b). In Rodgers v. Adams, a non-board-certified dentist was sued for malpractice. He contended that the plaintiff’s expert witness was not similarly situated to him because the expert practiced prosthodontics (a dentistry sub specialty), while the defendant practiced general dentistry. But the Alabama Supreme Court held that the expert witness, whose prosthodontics practice incorporated some aspects of general dentistry,could testify as an expert in the malpractice case.657 So. 2d 838 (Ala. 1995).
Local or National Standard?
Healthcare providers in Alabama are held to the standard of health care of the national medical community, not the local medical community. Therefore, medical expert witnesses must testify about national standards, according to the Alabama courts, which have been required to construe an ambiguity in the AMLA on this point.Compare Ala. Code § 6-5-548(a) with Ala. Code § 6-5-484(a); see Drs. Lane, Bryant, Eubanks & Dulaney v. Otts, 412 So. 2d 254 (Ala. 1982); Ford v. Stringfellow Mem. Hosp., 39 So. 3d 184 (Ala. Civ. App. 2009).
Daubert Challenges
Besides satisfying the AMLA’s requirements, a medical expert witness’s testimony must comply with the Alabama Rules of Evidence.As the Alabama Supreme Court has explained, the AMLA’s rules governing who may serve as a medical expert witness, discussed above,“establish the threshold showing, rather than the only showing,” that must be met before an expert witness may testify against a healthcare provider as to an alleged breach of the standard of care. Holcomb v. Carraway, 945 So. 2d 1009 (Ala. 2006). Consequently, parties can also raise so-called Daubert challenges seeking to prevent a medical expert witness from testifying.
VIII. Contributory Negligence
Sometimes a healthcare provider will try to assign blame to the patient, claiming that the patient caused his or her own injury by providing inaccurate health history information, neglecting to follow post-surgery instructions, and so forth. In Alabama, if a jury finds that the plaintiff was negligent in some manner and that the bad treatment result was partly the plaintiff’s own fault, he or she will lose the medical malpractice case and recover zero damages.
As with many legal rules, there are exceptions. For instance, a plaintiff’s negligence will not defeat a medical malpractice claim if the healthcare provider’s conduct was “willful or wanton.” See Lyons v. Walker Regional Med. Ctr., 868 So. 2d 1071 (Ala. 2003); Lyons v. Walker Regional Med. Ctr., 791 So. 2d 937 (Ala. 2000);Cackowski v. Wal-Mart Stores, Inc., 767 So. 2d 319 (Ala. 2000).
IX.Limitations on Damages
Money claimed by a plaintiff as compensation for a loss is referred to as “damages.” Alabama imposes ceilings or “caps”on the amount of damages that can be awarded in a medical malpractice lawsuit. But the Alabama Supreme Court has struck down some of these caps as unconstitutional, as discussed below.
Medical Bills, Lost Earnings
First, it is important to note that there is no statutory cap on monetary damages for items such as medical expenses (past and future) and lost earnings (past and future).
Pain and Suffering
With regard to pain and suffering and other “non-economic damages,” on its face the AMLA places an upper limit of $400,000 on the total amount of such damages. Ala. Code § 6-5-544(b). But the Alabama Supreme Court has declared this limitation unconstitutional, holding that the cap violates the right to a trial by jury under the Alabama Constitution. Moore v. Mobile Infirmary Association, 592 So.2d 156 (Ala.1991); Mobile Infirmary Med. Ctr. v. Hodgen, 884 So. 2d 801 (Ala. 2003). The bottom line is that there is currently no cap on damages for pain and suffering, emotional distress,and so forth. The courts invalidated one of the Alabama Legislature’s primary tort reform efforts: capping damages for pain and suffering.
Punitive Damages
The purpose of punitive damagesis to punish an especially culpable defendant. Such damages, which are allowed to exceed the plaintiff’s proven loss, require clear and convincing evidence that the defendant “consciously or deliberately” engaged in oppression, fraud, wantonness, or malice.Ala. Code § 6-11-20(a).
In Alabama, punitive damages are capped, with the ceilings calculated using certain formulas. In civil actions involving physical injury, no award of punitive damages may exceed $1.5 million (a figure expressed in 1999 dollars that is regularly adjusted upward for inflation), or three times the amount of compensatory damages awarded, whichever is greater. This limitation does not apply to actions for wrongful death. Ala. Code § 6-11-21(d), (j); Mobile Infirmary Med. Ctr. v. Hodgen, 884 So. 2d 801 (Ala. 2003).
Punitive damages can potentially be recovered even against a government-owned hospital or other medical facility. Ala. Code § 6-11-26.
Wrongful Death Actions
In wrongful death lawsuits, aseparate statutory provisionimposes an overall cap of $1 million on the total amount of damages that can be awarded. Ala. Code § 6-5-547. But the wrongful-death damage cap is not actually enforceable because the Alabama Supreme Court has ruled that it violates the state constitution, in that it discriminates against “one isolated class of Alabama citizens, namely, the victims of fatal medical malpractice,” as explained inSmith v. Schulte, 671 So. 2d 1334 (Ala. 1995).While some observers have questioned the continuing validity of Schulte’s rationalein light of subsequent case law, the state high court has adhered to itsSchulte decision in relevant respects (in other respects Schulte has been overruled). SeeGillis v. Frazier, 214 So.3d 1127 (Ala. 2014). As a result,while the $1 million wrongful-death damage capcan still be found in the Alabama statute books, it is no longerin effect because it has been declared unconstitutional.
Mandatory periodic payment of damages
Under the AMLA,if a plaintiff is awarded damages for future medical expenses, future custodial care, or future lost earnings, the court may be required to structure the damage award as periodic payments, rather than as a lump sum payment.Ala. Code § 6-5-543. But, as with certain other provisions discussed above, the Alabama Supreme Court has declared this provision unconstitutional, holding that it violates the Alabama Constitution’s right to trial by jury because it interferes with the jury’s constitutional function of making findings with regard to the amount of damages.Lloyd Noland Hospital v. Durham, 906 So. 2d 157 (Ala. 2005). Thus this provision of the AMLA, while still found in the statute books, is no longer operative because it has been declared unconstitutional.
X.Limitations on Attorneys Fees
Unlike some states, Alabama does not have a statute that limits medical malpractice attorneys fees.
XI. Patient Compensation Funds
While some states have created compensation funds to reimburse certain patients injured by healthcare treatment, Alabama has not done so.
XII. Apologies and Sympathetic Gestures
No Alabama statute explicitly addresses the effect of healthcare provider apologies, such as whether an apology for a poor treatment outcome is admissible evidence of negligence.
But if a healthcare provider (or malpractice insurance company) makes advance payments to a plaintiff, the paymentsmay not be construed as an admission of liability. Ala. Code § 6-5-487.
XIII. Disclaimer
This website has been prepared by Medical Malpractice Help for informational purposes only and does not constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.
The information contained in this website is provided only as general information, which may or may not reflect the most current legal developments. This website occasionally contains links to other web pages. The inclusion of such links, however, does not constitute referrals or endorsements of the linked entities. Newsome | Melton specifically disclaims any responsibility for positions taken by users in their individual cases or for any misunderstanding on the part of users of this website or any linked websites.
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