Alabama Medical Malpractice Laws

There is a certain level of trust that a patient places within their healthcare provider that is hard to duplicate. Patients allow their healthcare providers to see their medical history, learn about their current and ongoing physical ailments and perform procedures that often require them to put their life in the hands of their physician. When this level of trust is severed due to medical malpractice, it can be difficult to know what steps need to be taken in order to seek a legal remedy that is just.

If you are seeking damages for a claim of medical malpractice, time is of the essence since the law in your state has created a finite period of time in which you are permitted to bring a claim.

In addition, the law in Alabama has put into place myriad steps that need to be taken before you can even get your case started. This page was created to provide a brief overview of what you may expect if you are pursuing a medical malpractice claim in Alabama; however, the best course of action to take if you are considering doing so is to consult with an experienced medical malpractice attorney licensed in Alabama.

Suing for Medical Malpractice in Alabama

Alabama has a specific statute that governs claims of medical malpractice called the Alabama Medical Liability Act (“AMLA”). The Act addresses venue, the Plaintiff’s burden of proof, qualifications required for an expert witness to testify against a healthcare provider and discovery.

Ala. Code § 6-5-551 states that, “In any action for injury, damages or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care, or in the hiring, training, supervision, retention, or termination of caregivers, the Alabama Medical Liability Act shall govern the parameters of discovery and all aspects of the action.”

This means that the AMLA governs medical malpractice claims that involve:

• Injury
• Wrongful death
• Anything to do with the supervision of medical staff

Timing is everything when filing a medical malpractice claim in Alabama as the AMLA places a statute of limitations on how long you may wait to bring your claim. Once a claim is brought against the appropriate defendants, the law in Alabama allows named defendants to claim contributory negligence as a defense against a medical malpractice claim. Contributory negligence requires the defendant to prove that the plaintiff failed to exercise reasonable care and that failure led to your injury.

How long do I have to file a medical malpractice case in Alabama?

In order to ensure that medical malpractice claims are brought within a reasonable amount of time, the AMLA requires that a claim of medical malpractice be made by a plaintiff within two years from the act or omission that gave rise to the injury or if the injury could not have been reasonably discovered within the two-year period, then within six months from the date of discovery. [1] However, at no time may a medical malpractice claim be brought later than four years after the date on which the medical error was committed.

The logic behind extending the time period for which a claim may be brought beyond the standard two-year period is that some injuries are not easily discoverable. For example, during a surgical procedure, it is possible that a member of the surgical staff accidentally left a surgical tool in the patient’s body and the tool was not removed prior to completing the surgery. In this instance, it is unlikely the patient would know that the foreign object is in their body until symptoms appeared and those symptoms have the potential to take months to years to appear. Penalizing the patient for not knowing such a dangerous error was made is not just and for that reason the discovery rule was implemented by Alabama lawmakers. However, if a plaintiff wishes to implement the discovery rule, the burden is on them to prove that they did not, and could not, have reasonably discovered the injury within the standard two-year window of time.

Beyond the standard two-year and discovery rule statute of limitations, the law in Alabama allows for certain time exceptions to be applied to situations where the victim of medical malpractice was four years or younger at the time the medical malpractice was committed. In this scenario, the minor child has until their eighth birthday to have a claim of medical malpractice filed on their behalf. [2]

In Alabama Medical Malpractice Cases, Who is Responsible?

When most people think of a medical malpractice lawsuit, they think of an injured patient bringing a lawsuit against an individual, usually a doctor, due to a mistake the doctor made. While that is not a wildly inaccurate description of a medical malpractice claim, there are many more people, and even organizations, in the medical profession that can be held responsible for the injury or death of a patient than simply a doctor.

In Alabama, a medical malpractice lawsuit is able to be brought against a “health care provider.” The law in Alabama considers a health care provider to be “a medical practitioner, dental practitioner, medical institution, physician, dentist, hospital, or other healthcare provider.” [3] Nursing facilities, assisted living facilities, and specialized care assisted living facilities are considered to be included as an included component of a hospital. [4]

What if I am partially to blame? Can I Still Recover Money for Alabama Medical Malpractice?

Currently, four states (Alabama, Maryland, North Carolina, Virginia) and the District of Columbia adhere to the doctrine of pure contributory negligence.

The doctrine of contributory negligence is a tool for a defense to use against a plaintiff when it can be proven that the plaintiff contributed in some way to their own injury. The doctrine states that if the defense is able to prove that the plaintiff was at least partially responsible for their injury, the plaintiff is completely barred from receiving damages in the case. This rule is applicable even in a scenario where a court finds that the defendant was 99% to blame for the complained of injury.

For example, imagine if a surgeon fixed a patient’s broken leg and incorrectly prescribed a treatment plan for the patient to follow that included 45 days of non-weight bearing activity when the proper course of treatment would have called for at least 60 days. However, the patient, going against the physician’s orders, began to jog on day 40 of the treatment plan. If the patient were to suffer medical consequences as result of going against the prescribed treatment plan, it is possible that he would not be able to recover damages in an action against the physician if it can be proven that the plaintiff was partially to blame for his own injury due to the fact that he began running on the leg before the doctor deemed appropriate.

The doctrine of contributory negligence is incredibly advantageous for a named defendant in a medical malpractice case and undisputedly harsh against the plaintiff bringing the case. For this reason, other states have adopted other forms of comparative fault systems like pure comparative fault and modified comparative fault.

Pure comparative fault allows a plaintiff to recover damages for injuries even if they are found to have been 99% responsible for their injury. Under the system, while the plaintiff is allowed to recover damages, the damages are reduced in proportion to the degree of attributed fault.

Modified comparative fault, which has been adopted by the majority of states, reduces damages in proportion to the degree of attributed fault. There are two different schools of thought when it comes to modified comparative fault. 12 states follow a rule whereby the damaged party is not permitted to recover damages if it is proven that they are 50% or more responsible for their injury. 21 states follow a rule whereby the damaged party is not permitted to recover damages if it is proven that they are 51% or more responsible for their injury.

Under either of those modified comparative fault systems, if the court were to find that the plaintiff was 40% at fault for his own injury due to the fact that he placed weight on his leg prior to the physician’s incorrect recommendation and the physician was 60% at fault for recommending a treatment plan that was 15 days too short, any recovery in the case would be reduced according to the proven percentage of fault. If the total damages awarded to the plaintiff were $50,000, the plaintiff in the above scenario would be awarded $30,000.

Are there medical malpractice recovery caps in Alabama?

Upon the conclusion of a successful medical malpractice claim, a monetary award, known as damages, will be awarded by the court to the plaintiff. The law in Alabama has established different types of damage awards a plaintiff may receive:

Compensatory Damages are awarded for the purpose of helping to put a person back in the position which existed before their injury occurred. Under the compensatory damages umbrella is two sub-categories; General Damages and Special Damages.

General Damages link the defendant’s conduct with the plaintiff’s injury. General damages can include an award for pain and suffering; mental anguish; lowered quality of life; disfigurement and impairment.

Special Damages are damages that compensate the plaintiff for financial losses suffered as a result of the defendant’s actions. Special damages may come in the form of an award for covering the cost of surgery; lost wages and future earning capacity; past medical expenses and future medical expenses.

Punitive Damages do not compensate the plaintiff for their injury. Instead, punitive damages are intended to punish the defendant and deter future behavior similar to that of the defendant. The law in Alabama allows punitive damages to be awarded tort action where it is proven by clear and convincing evidence that the defendant consciously or deliberately engaged in oppression, fraud, wantonness, or malice with regard to the plaintiff. [5]

The law in Alabama once placed a $400,000 limit on compensatory damages awards and a $1 million total limit on medical malpractice awards but those caps were deemed unconstitutional by the State Supreme Court. [6]

However, if a court awards punitive damages, the law in Alabama does cap punitive damage awards to the larger of three times the compensatory award or $1,500,000. [7]

Expert witness reporting and testimony

An expert witness is a person who is a specialist in a subject who may present their expert opinion without having been a witness to any occurrence relating to the claim being brought before the court.

The testimony of an expert witness is of utmost importance in Alabama because, in order to have a successful outcome, the plaintiff must prove:

• There was a breach of the standard of care owed by the physician by an act or omission and that caused the plaintiff’s injury; and
• The breach of the requisite standard of care was the proximate cause of the injury

In Alabama, expert testimony is required to establish both the breach of the standard of care and that the breach caused the injury. However, in a situation where the defendant’s lack of care or skill is so obvious that any layperson with common knowledge and experience could comprehend it, the expert testimony requirement is waived.

How does one know who is qualified to be an expert? In Alabama, if the case is being brought against a healthcare provider who is deemed to be a specialist, the expert wishing to provide testimony must be a similarly situated healthcare provider. [8] To be considered a similarly situated healthcare provider, the expert must; (1) be licensed by the appropriate regulatory board; (2) be trained and experienced in the same specialty; (3) be certified by an appropriate American board in the same specialty; and (4) have practiced in this specialty during the year preceding the date that the alleged breach of the standard of care occurred. [9] If the expert meets those four criteria, they will be considered a similarly situated healthcare provider in the eyes of the court and will be permitted to testify.

Per code of Alabama 6-5-551, a plaintiff who is alleging malpractice must have a detailed expert opinion before filing a medical malpractice complaint which initiates the lawsuit against the healthcare provider.

Are some parties immune from medical negligence cases?

The law in Alabama specifically states that “In any action for injury, damages or wrongful

death, whether in contract or in tort, against a health care provider for breach of the standard of health care provider for breach of the standard of care, whether resulting from acts or omissions in providing health care, or in the hiring, training, supervision, retention, or termination of caregivers, the Alabama Medical Liability Act shall govern the parameters of discovery and all aspects of the action.” [10]

A healthcare provider is a, “a medical practitioner, dental practitioner medical institution, physician, dentist, hospital, or other healthcare provider other health care provider.” [11]

However, state constitution holds that public institutions created by the State purely for charitable or educational purposes are a part of the State and are not subject to be sued. [12]

Settling medical malpractice cases in Alabama

The AMLA offers alternative dispute resolution methods that may be followed in order to resolve a medical malpractice claim out of a trial setting. [13]

One method that the AMLA allows as a means of alternative dispute resolution is arbitration. Arbitration is a method for resolving disputes in which the parties agree to submit their claims to neutral third party for a binding decision in lieu of filing a lawsuit in court. The neutral third party will review all evidence, hear testimony, and render a decision on a claim.

To select the neutral third party, the plaintiff will select one competent and disinterested arbitrator, and the named defendant(s) will select one competent and disinterested arbitrator. The two previously chosen arbitrators will then select a third arbitrator, or, if unable to agree on a third arbitrator within 30 days, a judge of a court of record in the county in which the arbitration is pending will make the third selection. [14]

Once the arbitration panel is in place, they will then hear and determine the question or questions in dispute in accordance with the procedural rules established by the American Arbitration Association.

The decision in writing of any two arbitrators is binding upon all parties. [15]

Litigating medical negligence cases in Alabama

A claim for medical malpractice in Alabama begins with the filing of a complaint. The complaint must specifically describe the alleged malpractice that occurred and also designate expert witnesses who will testify on behalf of the plaintiff. In addition, a plaintiff in a medical malpractice case based in Alabama must include a detailed description of every negligent act committed by the defendant medical provider, including a factual description of how each act was negligent and when the act allegedly occurred.

In most cases, after a defendant receives the complaint from the plaintiff, a claim for medical malpractice is settled prior to the claim going to trial. However, in situations where a settlement cannot be reached, the case will proceed to the litigation stage.

Initiating the Case

If the parties to a medical malpractice claim do not wish to utilize an alternative dispute resolution method provided by the AMLA, the claim will proceed to civil court

In Alabama, a civil action first begins with the filing of the complaint with the appropriate court. Each complaint must be accompanied with an informational cover sheet. The plaintiff or their attorney must fill out the information portion of the cover sheet before it is filed with the court. The cover sheet includes information like:

• Type of personal injury giving rise to the claim
• Name of the Plaintiff
• Name of the Defendant
• Whether the case is an initial filing or an appeal
• Whether a monetary award is being requested [16]

After the complaint and informational cover sheet are properly filed with the appropriate court, the litigation process has begun from a statute of limitations standpoint. Once the complaint is filed, it must be personally served upon the defendant(s) by the sheriff, special process server, or certified mail. Once the defendant(s) is served, he has thirty (30) days to file an answer at the same court. [17]

Preparing for Litigation

After the complaint and answer have been filed in the appropriate court, the parties may begin the discovery process. Discovery is the formal process of exchanging information between parties about the witnesses and evidence that will be presented at trial.

The discovery process can include requests for the production of medical records, physician notes, basically, anything that can help bolster a legal argument. The defendant(s) have forty-five (45) days from the date of service in which to answer or thirty (30) days if they are served after they have filed their answer. If the defendant(s) do not answer, a motion to compel an answer may be filed with the court. [18]

Usually, after the discovery process has been completed, the next stage of preparation begins which involves the taking of depositions. A deposition is witness’s sworn out-of-court testimony used to gather information as part of the discovery process and, in limited circumstances, may be used at trial.

In most cases, the plaintiff, as well as all named defendants, will be deposed prior to trial in addition to certain witnesses and, in the case of a medical malpractice claim, doctors. The actual deposition involves a question and answer session between opposing counsel and the aforementioned possible parties. Attorneys are present in order to help advise their client on how to answer certain questions as well as to make objections if necessary. Through the question and answer session, opposing counsel will try to find out what facts the opposing party believes to be true and what facts they may be exaggerating.

In a medical malpractice case, it is possible that the person bringing the claim will need to be medically evaluated in order to corroborate that the injury being complained of does in fact exist.

Pretrial Litigation

The parties involved in a medical malpractice claim are allowed to agree to a settlement at any point prior to the beginning of a trial. The litigation process is lengthy and expensive and because of this, most cases do settle prior to going to trial.

In an effort to settle, it is not uncommon for an attempt at mediation to occur prior to going to the trial phase of litigation. Mediation is a process where all involved parties come together before a neutral third party in order to try and settle the case.

Upon an agreement to undergo mediation, the court will appoint a qualified mediator to oversee the process. [19] The mediator is charged with the goal of attempting to help the parties reach a satisfactory resolution to their dispute.

However, if the parties are unable to come to a settlement agreement during mediation, a trial is likely the next step in the litigation process.

Trial

If the parties are unable to reach a settlement at any point, the case will go to trial.

During a trial, all admissible evidence will be presented to the ‘trier of fact’ who is a person or group of people who hear testimony and review evidence in order to issue a ruling in favor of one party or another. There are two potential triers of fact in a personal injury case in the state of Alabama: a judge or a jury. In Alabama, juries are permitted in all cases involving claims for monetary damages and in some cases seeking equitable relief.

To choose a jury, a procedure known as “voir dire” is conducted whereby attorneys ask potential jurors questions in order to determine what biases the panel members may have in favor or against the cast being brought before the court. Once this process is completed, both sides will decide what parties they would like to remove from juror consideration. Once each side finishes announcing the parties they wish to have removed, the twelve (12) member jury is impaneled.

In Alabama, a person is considered to be qualified to be a juror if they are:

• A citizen of the United States or have been a resident for more than 12 months
• Over the age of 19 years old
• Able to read and speak and understand instructions given by a judge in English

After the jury selection is completed, opening statements will begin. During opening statements, each side will present what they believe the evidence will show during the course of the trial process.

From there, the plaintiff will begin to argue their case. Witnesses will likely be called and expert testimony will be used to attempt to show that the physician was negligent and that the negligence was the cause of the plaintiff’s injury.

Once the plaintiff finishes the presentation of their case, the defense will begin to present their case. The defense will present the physician’s side of the case and attempt to show why negligence was not involved in creating the patient’s injury.

Once both sides have argued their cases, closing arguments will take place and jury instructions will then be given by the judge to the jury. The jury is then free to deliberate and come back with a finding.

Appeal

It is not uncommon for the losing side in a medical malpractice case to appeal a decision from the lower court. An appeal allows a higher court to review the actions of a lower court in order to determine if the law was appropriately applied.

The Alabama Supreme Court has original jurisdiction over all civil appeals exceeding $50,000. If a party wishes to appeal a decision rendered by a lower court, the appeal must be filed within forty-two (42) days of the order. [20]

How to find the best Alabama Medical Malpractice Lawyer for your case

If you or a loved one has had the unfortunate experience of being injured as a result of medical malpractice, it is likely that the last thing you want to do is deal with the intricacies and nuances associated with filing a medical malpractice lawsuit. This is why it is important to find legal representation that can take your mind off of the legalese so that you can focus on healing.

One of the main motivating factors in bringing a medical malpractice lawsuit against a healthcare provider that caused your injury is to receive proper compensation for the pain, suffering and losses you have likely endured. For this reason, it is of utmost importance that you find competent, diligent and personable counsel to represent your interests.

When looking to hire legal representation, it is important to remember that the attorney will be working for you – not the other way around. Take your time and interview more than one firm so that you can get a good sense of what each firm brings to the table.

It is important to ask an attorney or law firm their level of experience in the world of law centered on medical malpractice. In law, having experience is usually a plus. You will want a seasoned attorney or firm that has seen many different scenarios that can come into play in a medical malpractice case. You may also want to ask how many cases they have handled that are similar to yours. If they have had experience with cases with facts similar to yours, they may be able to give insight into how long the case may last and what your expected damages may be in addition to what their success rate has been.

You should also ask your potential attorney or firm how they communicate with their clients. Communication is incredibly important. However, many people communicate in different ways which can lead to frustration if the methods used between the parties do not mesh. Finding out early that the attorney-client relationship is not going to work is incredibly important since changing attorneys or firms in the middle of litigation is a time consuming and arduous process.

Some notable medical malpractice law decisions from Alabama

These cases represent awards to plaintiffs in medical malpractice cases in Alabama. It is important to note results in the past are no guarantee of results in subsequent cases with similar circumstances.

Hallmark v. Shipman

In 2008, the husband of Donna Hallmark, Terry Hallmark, died of a heart attack after visiting a hospital. Ms. Hallmark’s husband had been feeling sick to his stomach after eating breakfast two days prior to his hospital visit. Because he continued to feel sick, he went to the hospital complaining of the signs and symptoms of heart trouble, including chest pain. While at Walker Baptist Medical Center, Terry Hallmark’s symptoms should have led to the treating physician, Dr. Shipman, to take the condition seriously. However, Dr. Shipman decided to release Terry from his medical care after four or five hours of being admitted to the hospital. Terry Hallmark died due to a heart attack a few days later.

Donna Hallmark then brought a lawsuit against the treating physician, Dr. Shipman, claiming that his misdiagnosis led to her husband’s death. The trial focused on testimony from both sides centered on the standard of care, which required the defendant to consider a cardiac problem and rule it out before sending the patient home. The court ultimately found that the physician should have ordered blood tests that could have led to the correct diagnosis – something that was not done during Mr. Hallmark’s hospital visit.

The jury returned a verdict in favor of Ms. Hallmark in addition to a $4 million award.

Thomas Jackson and Linda Jackson v. Kenneth Goldman, M.D., Surgical Associates of Columbus, The Medical Center and Vincent Nicholais

Thomas Jackson had his intestine punctured during a four-hour hernia operation on January 17, 2002. Mr. Jackson’s small intestine was perforated by Dr. Kenneth Goldman who also failed to repair the error. As a result, Mr. Jackson suffered a serious abdominal infection that left him in intensive care for the better part of six months.

Thomas Jackson, along with his wife, Linda, filed a medical malpractice lawsuit against Dr. Kenneth Goldman and Surgical Associates of Columbus on Dec. 30, 2003, on the basis that Dr. Goldman’s error and subsequent failure to repair the damage that he caused, resulted in Mr. Jackson’s injury. The lawsuit was also brought against the medical center where Mr. Jackson spent six months after the botched surgery but the hospital settled with the Jacksons out of court.

During the trial, Dr. Goldman claimed that during the surgery he had indeed penetrated the outer layer of Mr. Jackson’s intestine, but did not think the perforation was deep enough to cause damage. Though the patient’s condition worsened immediately after the operation, Goldman did not discover the problem until another doctor suggested that he determine whether Mr. Jackson had an intestinal infection.

Due to the late discovery of the infection, Mr. Jackson was forced to undergo multiple additional surgeries which caused him to sustain deep bed sores that penetrated the muscle of his back. Mr. Jackson then had to endure over two years of physical therapy and now relies on a wheelchair as he has limited use of his legs.

The end result of Dr. Goldman’s negligence was the end of Mr. Jackson’s career; his wife’s career – due to the need to tend to Mr. Jackson, and a lifetime of pain and suffering.

Ultimately the jury found in favor of the Jackson’s and awarded $6.7 million in damages. The award was divided between Mr. and Mrs. Jackson with $5.2 million being awarded to Mr. Jackson and $1.5 million to Mrs. Jackson.

Footnotes

[1] Ala. Code § 6-5-482 (a)

[2] Ala. Code § 6-5-482 (b)

[3] Ala. Code §6-5-481

[4] Ala. Code § 22-21-20

[5] Ray v. Anesthesia Associates of Mobile, P.C., 674 So.2d 525 [Ala. 1995]

[5] Ala. Code § 6-11-20 (a)

[6] Moore v. Mobile Infirmary Ass’n, 592 So. 2d 156 (Ala. 1991)

[7] Ala. Code § 6-11-21

[8] Ala. Code § 6-5-548(c)

[9] Ala. Code § 6-5-548(c)

[10] Ala. Code § 6-5-551

[11] Ala. Code § 6-5-542

[12] Ala. State Constitution Section 14

[13] Ala. Code § 6-5-485

[14] Ala. Code § 6-5-485(b)

[15] Ala. Code § 6-5-485(b)

[16] ARCivP-93

[17] Alabama Rules of Civil Procedure Rule 12(a)

[18] Alabama Rules of Civil Procedure Rule 34(b)

[19] Civil Court Mediation Rules Rule 3

[20] Ala. Code § 6-5-642.