Tobiassen v. Sawyer12/30/2004
od did not begin to run until the date of the second operation on June 26, 1987. However, it is clear that any negligence that may have been committed by Dr. Lightfoot occurred on May 1, 1987, when the first operation was performed. Further, it is clear that Grabert was damaged at the time of the first operation on May 1, 1987; he had a hernia and Dr. Lightfoot failed to find or to remedy that condition."
Grabert, 571 So. 2d at 294 (quoting Colburn v. Wilson, 570 So. 2d 652, 654 (Ala. 1990)).
Sawyer's complaint alleges that on December 1, 2000, he was suffering a stroke, that Dr. Tobiassen and Thomas Hospital were negligent in failing to diagnose the stroke, and that Sawyer was injured as a result. Thus, from the face of the complaint, Sawyer is alleging that the wrongful acts and omissions in this case occurred on December 1, 2000.
On appeal, however, Sawyer argues that his cause of action did not accrue on December 1, 2000, because, he says, he suffered no legal injury on that date. Specifically, Sawyer asserts in his brief that while Dr. Tobiassen's and Thomas Hospital's negligent acts or omissions "began" on December 1, 2000, his stroke did not actually occur until December 5, 2000. Then, he contends, a legal injury resulted and his cause of action accrued.
Sawyer's argument on appeal, however, directly contradicts his complaint. The complaint does not limit the alleged injury in this case to a stroke that occurred on December 5; indeed, it does not even allege any such injury occurred. Instead, Sawyer's complaint alleges that Dr. Tobiassen and Thomas Hospital were negligent on December 1, 2000, because they failed to discover that Sawyer had suffered a stroke and because they sent him home without diagnosing or treating the stroke.
" hen it appears from the face of the complaint that the plaintiff's claim is time-barred, the defendant is entitled to a dismissal based upon the defense of the statute of limitations, without the necessity of offering any proof." Payton v. Monsanto Co., 801 So. 2d 829, 834 (Ala. 2001). Accepting as true the facts as alleged by Sawyer in his complaint, the cause of action in this case accrued on December 1, 2000, when Dr. Tobiassen and Thomas Hospital allegedly failed to diagnose a stroke. Sawyer's action was filed more than two years after December 1, 2000. Therefore, Sawyer's claims are barred by § 6-5-482(a), and Dr. Tobiassen and Thomas Hospital are entitled to judgment in their favor.
1030044 -- REVERSED AND JUDGMENT RENDERED.
1030043 -- REVERSED AND JUDGMENT RENDERED.
Nabers, C.J., and Houston, See, Lyons, Harwood, Woodall, and Stuart, JJ., concur.
Johnstone, J., dissents.
JOHNSTONE, Justice (dissenting).
An identification of an issue that is not before us is important to a correct analysis of the issue that is before us. The defendant Dr. Tobiassen moved for judgment on the pleadings. The defendant Thomas Hospital moved for summary judgment. The ground of each motion was that the plaintiff's action was barred by the medical-malpractice statute of limitations, § 6-5-482(a), Ala. Code 1975, restricting the plaintiff's time to file suit to two years (subject to an exception not applicable in this case) following the alleged act or omission by the defendants. Each defendant's motion contended only that some damage proximately resulted from the alleged act or omission more than two years before the plaintiff filed suit.
Neither motion contended that no damage at all proximately resulted from the alleged act or omission or that no damage eventually resulted from the alleged act or omission at some time less than two yea
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