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Tobiassen v. Sawyer12/30/2004
s face shows or the record before the trial court established without genuine dispute that, before December 5, 2000, at least some damage proximately resulted to the plaintiff from Dr. Tobiassen's failure to diagnose the plaintiff's stroke. However, the complaint does not show on its face and the record did not establish that, but for Dr. Tobiassen's failure to diagnose the plaintiff's stroke, the plaintiff would have avoided some subsequent damage. Axiomatically, the damage suffered by the plaintiff before Dr. Tobiassen's failure to diagnose did not result proximately from it. The complaint does not show, the record did not establish, the trial court could not assume, and this Court cannot assume that, but for Dr. Tobiassen's failure to diagnose stroke, he or some other medical provider could have stabilized the plaintiff's condition, improved it, prevented another stroke, or prevented further damage before December 5, 2000.
To the extent that Grabert, supra, the crucial authority for the main opinion, is valid law at all, Grabert is distinguishable from the case before us in that the Grabert Court assumed (without revealing how it assumed) that, but for the defendant doctor's failure to find the plaintiff's hernia, the doctor could have "remed that condition," 571 So. 2d at 294. The record for the defendants' motions in the case now before us contains no evidence that the plaintiff's condition was remediable at the time of Dr. Tobiassen's failure to diagnose stroke.
Therefore, in the case before us, the complaint does not show on its face and the record did not establish without dispute that, before December 5, 2000, any damage whatsoever proximately resulted to the plaintiff from Dr. Tobiassen's failure to diagnose. See Sweeney v. Purvis, 665 So. 2d 926, 932 (Ala. 1995)(relying in part on the definition of proximate cause, including the element that "without [the negligence, the injury ] would not have occurred"). Therefore, the two-year statute of limitations did not and does not bar the plaintiff's action.
The main opinion, in ultimate effect, holds that a physician's negligent failure to diagnose a stroke necessarily, as a matter of law, entails proximately caused damage and thereby constitutes a complete cause of action for medical malpractice, which will start the running of the plaintiff's time to file suit. But suppose the shoe were on the other foot.
Suppose the medical facts were all the same. Suppose, though, the plaintiff had filed suit within two years after the defendants' act or omission. Suppose the defendants challenged, not the timeliness of the civil action, but the sufficiency of the evidence of proximately caused damage, and the plaintiff submitted sufficient evidence that the defendants had negligently failed to diagnose the plaintiff's stroke. With no more proof of proximately caused damage than the main opinion reveals, would this Court hold that the plaintiff had sufficiently proved proximately caused damage and thus had proved a complete prima facie case of medical malpractice?
Suppose such a case comes to this Court in the future. Will this Court steadfastly follow today's decision and recognize a prima facie case of medical malpractice proved by the plaintiff?
I could predict. See Bobo, 706 So. 2d at 766:
"In any event, we note that Bobo failed to present any substantial evidence on the issue of proximate causation. In other words, Bobo did not offer any evidence showing that Dr. Bryant's failure to diagnose her fracture proximately caused her legs to become 'crooked' or 'unsymmetrical.' 'To prove causation in medical malpractice case, [Bobo] must prove, through expert medical testimony, that the
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