Tucker v. Tombigbee Healthcare Auth. (Ex parte Hodge)
| Decision Date | 07 February 2014 |
| Docket Number | 1121217.,1121194 |
| Citation | 153 So.3d 734 |
| Parties | Ex parte Gerald HODGE, M.D. (In re David Tucker, Jr., as administrator ad litem for the Estate of Gertha R. Tucker, and David Tucker, Jr., individually v. The Tombigbee Healthcare Authority et al.). Ex parte Tombigbee Healthcare Authority d/b/a Bryan W. Whitfield Memorial Hospital (In re David Tucker, Jr., as administrator ad litem for the Estate of Gertha R. Tucker, and David Tucker, Jr., individually v. The Tombigbee Healthcare Authority et al.). |
| Court | Alabama Supreme Court |
Tabor R. Novak, Jr., of Ball, Ball, Matthews & Novak, P.A., Montgomery, for petitioner Gerald Hodge, M.D.
Philip W. Partridge and Bryan D. Smith of Partridge, Smith, P.C., Mobile, for petitioner Tombigbee Healthcare Authority d/b/a Bryan W. Whitfield Memorial Hospital.
Adedapo T. Agboola and Anthony C. Ifediba of The Ifediba Law Firm, Birmingham, for respondent.
Dr. Gerald Hodge and Tombigbee Healthcare Authority d/b/a Bryan W. Whitfield Memorial Hospital separately petition this Court for a writ of mandamus directing the Marengo Circuit Court to dismiss the claims asserted against them by Gertha R. Tucker and David Tucker, Jr., individually and as the administrator ad litem for Gertha Tucker's estate, based on the applicable statute of limitations.
Gertha Tucker underwent a hysterectomy
in 2006. The hysterectomy was performed by Dr. Gerald Hodge at Bryan W. Whitfield Memorial Hospital. On December 28, 2011, Gertha was seen by a rheumatologist upon her complaints of bilateral thigh pain. An X-ray revealed the presence of a surgical hemostat clamp lodged in Gertha's peritoneal cavity. On February 8, 2012, Gertha underwent a surgical procedure to remove the retained hemostat clamp from her abdomen. Gertha also had her appendix removed at that time.
On March 5, 2012, Gertha sued Dr. Hodge, Tombigbee Healthcare Authority d/b/a Bryan W. Whitfield Memorial Hospital (hereinafter referred to collectively as “the defendants”), and others, alleging claims under the Alabama Medical Liability Act, § 6–5–480 et seq. and § 6–5–540 et seq., Ala.Code 1975. In count I of the complaint, Gertha specifically alleged that Dr. Hodge performed a hysterectomy
on her in 2005;1 that Dr. Hodge negligently failed to account for and to remove from her body a surgical hemostat clamp; that she did not discover the presence of the foreign object until December 2011, when she first started experiencing pain; and that as the proximate result of the negligent failure to remove the hemostat claim, she was made to suffer pain, life-threatening medical problems, including severe infections, and mental anguish.
In count II of the complaint, Gertha alleged that the defendants failed to properly manage, train, or supervise their surgical team, which, she says, directly resulted in the hemostat clamp being retained in her body and causing her injuries.
In count III of the complaint, Gertha asserted claims against Dr. Judy Travis and Dr. Ronnie Chu alleging a failure to diagnose; a failure to treat and to make a timely referral for treatment; a failure to disclose; and fraudulent suppression, which, she says, caused her condition to deteriorate resulting in her life-threatening medical problems including sepsis, infection, blood clots
, possible stroke, and the removal of her appendix. On March 19, 2012, Gertha amended her complaint to add, as a plaintiff, her husband David, who asserted a claim for loss of consortium.
On March 22, 2012, Dr. Hodge moved the trial court to dismiss the amended complaint against him pursuant to Rule 12(b)(6), Ala. R. Civ. P., arguing that it was barred by the applicable statute of limitations set forth in § 6–5–482, Ala.Code 1975. On April 3, 2012, Tombigbee Healthcare answered and also moved the trial court to dismiss the amended complaint against it pursuant to Rule 12(b)(6), Ala. R. Civ. P., arguing that it was barred by the applicable statute of limitations set forth in § 6–5–482, Ala.Code 1975. Section 6–5–482(a) provides:
“(a) 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 or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; provided further, that in no event may the action be commenced more than four years after such act; except, that an error, mistake, act, omission, or failure to cure giving rise to a claim which occurred before September 23, 1975, shall not in any event be barred until the expiration of one year from such date.”
(Emphasis added.) The defendants argued that Gertha's injury occurred and her cause of action accrued at the time of the act or omission complained of whether or not the injury was or could have been discovered within the statutory period. See Jones v. McDonald, 631 So.2d 869 (Ala.1993) (); Street v. City of Anniston, 381 So.2d 26 (Ala.1980) (); and Bowlin Horn v. Citizens Hosp., 425 So.2d 1065 (Ala.1982). The defendants argued that the injury complained of occurred in 2005, when Gertha underwent the hysterectomy
, and that her complaint filed in 2012 is barred by the four-year period of repose set forth in § 6–5–482(a).
On July 23, 2012, the Tuckers filed a response in opposition to the defendants' motions to dismiss. Citing Crosslin v. Health Care Authority of Huntsville, 5 So.3d 1193 (Ala.2008), and Mobile Infirmary v. Delchamps, 642 So.2d 954 (Ala.1994), the Tuckers argued that Gertha's legal injury occurred in December 2011, when she first began experiencing pain in her abdomen and discovered the presence of the hemostat clamp. See Crosslin, 5 So.3d at 1196 (). Thus, the Tuckers contend that the complaint filed in March 2012 was not barred by the statute of limitations found in § 6–5–482.
Gertha passed away on April 8, 2012. On July 25, 2012, David was substituted by order as the administrator ad litem and personal representative of Gertha's estate.2 On August 2, 2012, the trial court entered an order denying Tombigbee Healthcare's motion to dismiss the amended complaint. The trial court's order contained no express disposition of Dr. Hodge's motion to dismiss.
On August 6, 2012, David, as the personal representative of Gertha's estate, filed a second amended complaint in order to assert a wrongful-death claim against the defendants.3 David alleged that as the result of the defendants' actions Gertha suffered injuries, including abdominal abscesses
, sepsis, stroke, and pulmonary thromboembolism, which caused her death on April 8, 2012.
On August 9, 2012, Tombigbee Healthcare moved to dismiss the second amended complaint, arguing that any claims relating to the surgical procedure performed in 2006 were barred by the four-year period of repose set forth in § 6–5–482. Also on August 9, 2012, Tombigbee Healthcare moved the trial court for a partial summary judgment as to all claims asserted against it. Tombigbee Healthcare argued that Gertha's cause of action accrued in 2006, the date of the act complained of, i.e., the hysterectomy
, and that her cause of action filed in March 2012 was filed well beyond the absolute bar of the four-year period of repose found in § 6–5–482(a). Citing Hall v. Chi, 782 So.2d 218 (Ala.2000), Tombigbee Healthcare further argued that because Gertha did not have a viable medical-malpractice claim at the time of her death—because that claim was barred by the four-year period of repose—her estate could not maintain a wrongful-death action because such an action would also be untimely as it relates to the complained of hysterectomy
performed in 2006. See Hall, 782 So.2d at 221 ().
On August 10, 2012, Dr. Hodge moved the trial court to dismiss the second amended complaint, echoing Tombigbee Healthcare's argument that Gertha's estate could not maintain a wrongful-death claim without the existence of a viable medical-malpractice claim at the time of her death.
On September 27, 2012, David, individually and in his representative capacity, filed a response in opposition to the defendants' motions, arguing that the trial court had, by its order of August 2, 2012, denying Tombigbee Healthcare's initial motion to dismiss, determined that Gertha had a viable medical-malpractice claim at the time of her death on April 8, 2012. David contended that the wrongful-death claim was governed by the applicable two-year statute of limitations found in § 6–5–410, Ala.Code 1975, and not by the provisions of § 6–5–482. Thus, David argued that the wrongful-death claim asserted on August 6, 2012, was timely because it was brought within the two-year limitations period set forth in § 6–5–410.
On January 28, 2013, Dr. Hodge supplemented his motion to dismiss with the affidavits of Dr. Jerry Luther and ...
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