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TALLEY v. SONNIER11/22/1996
This is a medical malpractice case. Tammy Talley and her husband, Lawrence Talley, appeal from a summary judgment in favor of Dr. Marc Q. Sonnier, Dr. Robert van der Meer, and Flowers Hospital, Inc. (hereinafter "the defendants"). This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala. Code 1975.
On April 5, 1995, the Talleys sued the defendants, alleging that the defendants had been negligent in rendering medical care and treatment to Mrs. Talley and that, as a proximate result, she had suffered pain, mental anguish, and permanent injury and that Mr. Talley had suffered a loss of consortium. The Talleys amended their complaint in September 1995, specifically alleging that on April 1, 1991, an unnecessary hysterectomy had been performed on Mrs. Talley and that false representations that she had cancer had been made to her both before and after the surgery. The defendants moved to dismiss, or, alternatively, for a summary judgment. The court, on November 2, 1995, entered a judgment in favor of the defendants; the Talleys appeal.
The Talleys contend that there was a material question of fact as to the date that their cause of action accrued. Mrs. Talley testified in her deposition that she had received care and treatment from June 1990 to October 1991. She stated that she was informed by Dr. Sonnier in March 1991 that she had cancer of the cervix, that it had spread to the lining of her uterus, and that a hysterectomy was the appropriate treatment. On April 1, 1991, Dr. Sonnier and Dr. van der Meer performed a hysterectomy. Mrs. Talley alleges that, post-operatively, she was informed that the original diagnosis was correct; that she was informed the cancer had been removed; and that in October 1991 when she was reexamined to see if the cancer had returned, she was told by Dr. Sonnier that she would need frequent check-ups because "someone who had cancer once was more likely to get it again." The Talleys argue that the court should have applied the
"continuing treatment rule," which would have extended the limitations period until October 1995, or, in the alternative, that the court should have determined the limitations period to be six months from December 1994, when the Talleys discovered that the operation may have been unnecessary. The Talleys sued on April 5, 1995.
The defendants argue that the judgment was proper, citing Jones v. McDonald, 631 So.2d 869 (Ala. 1993). In Jones, a physician was sued for medical malpractice after he left a gauze in the patient's eye area following surgery and failed to discover the gauze during follow-up treatment. Our supreme court rejected the "continuing treatment rule" as inapplicable to medical malpractice actions brought pursuant to the Alabama Medical Liability Act of 1987 ("AMLA") and held that the patient's action was barred by the statute of limitations provided in the AMLA. Id., at 873.
The Talleys' claim is governed by the AMLA, because the alleged malpractice occurred in 1991. See §§ 6-5-480 and 6-5-540, Ala. Code 1975. Section 6-5-482(a) establishes the limitations period for the commencement of an action against a health care provider, as follows:
"All actions against physicians, surgeons, dentists, medical institutions, or other health care providers for liability, error, mistake, or failure to cure, whether based on contract or tort, must be commenced within two years next after the act, or omission, or failure giving rise to the claim, and not afterwards; provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery
Page 1 2 3 Alabama Personal Injury Attorneys
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