Thomas v. Niemann

• Decision Date: 06 February 1981
• Citation: 397 So.2d 90
• Parties: Charles Dean THOMAS, a minor who sues by his mother and next friend, Mrs. Charles R. Thomas v. Dr. Kurt M. NIEMANN. 79-619.
• Court: Alabama Supreme Court

Page 90

397 So.2d 90

Charles Dean THOMAS, a minor who sues by his mother and next friend, Mrs. Charles R. Thomas v. Dr. Kurt M. NIEMANN.

79-619.

Supreme Court of Alabama.

Feb. 6, 1981.

Rehearing Denied April 10, 1981.

William J. Baxley and Charles A. Dauphin of Baxley, Stuart, Ward & Dillard, Birmingham, for appellant.

Marshall H. Fitzpatrick of Norman, Fitzpatrick & Wood, Birmingham, for appellee.

PER CURIAM.

Plaintiff, Charles Thomas, a minor fourteen years of age, brought this action by his mother as next friend against Dr. Kurt Niemann for the alleged negligence of Dr. Niemann in treating Thomas surgically on or about January 25, 1973, by negligently leaving sutures in plaintiff's leg. The leg became infected beginning July, 1979, and sutures from the 1973 surgery were discovered when the leg was operated on in January, 1980. The suit was filed February 12, 1980. Act No. 513, Acts 1975, contains a medical liability statute of limitations, Code 1975, § 6-5-482, that was pleaded by motion to dismiss. The motion was granted and judgment entered dismissing the action and taxing costs. Plaintiff appeals from that judgment.

The single issue raised by this appeal is whether Act No. 513, Acts 1975, is unconstitutional under Article IV, § 45, of the Alabama Constitution of 1901 because: (1) the subject of the Act is not clearly expressed in its title; and (2) the Act contains more than one subject.

The Alabama Constitution of 1901 provides in Article IV at § 45: "Each law shall contain but one subject, which shall be clearly expressed in its title, except general appropriation bills, general revenue bills, and bills adopting a code, digest, or revision of statutes...."

In our recent case of Street v. City of Anniston, 381 So.2d 26 (Ala.1980), we held that § 4 of Act No. 513, Acts 1975 (codified at Code 1975, § 6-5-482(a)), is a traditional statute of limitations and, therefore, is not subject to constitutional infirmity under § 45, saying:

Code 1975, 6-5-482(a), is similarly titled "a statute of limitations," and commences the running of the statute from the time of the act or omission giving rise to the cause of action. It does not, however, act as a grant of immunity; our case law has established that, in malpractice actions, legal injury occurs at the time of the negligent act or omission, whether or not the injury is or could be discovered within the statutory period. Garrett v. Raytheon, supra (368 So.2d 516), Hudson v. Moore, 239 Ala. 130, 194 So. 147 (1940), Sellers v. Edwards, 289 Ala. 2, 265 So.2d 438 (1972). Thus, the Plaintiffs attempt to distinguish their case from those cited by pointing out that Raytheon, Hudson and Sellers all involved the introduction of a foreign agent into the body of the plaintiff, while the instant case merely involved an omission on defendant's part. In Sellers, a bulldog clamp was left in the plaintiff's body after an operation; in Hudson, a gauze sponge was not removed during an operation; in Raytheon, the plaintiff's injuries resulted from exposure to radiation. This distinction is unpersuasive, however. Raytheon, Hudson and similar cases were not premised on any physical trespass to the plaintiffs' bodies, but on the occurrence of a legally cognizable injury, no matter how slight, which resulted immediately upon the taking place of the negligent act or omission. In these cases, the Court held that, although the actual injury initially incurred was so slight that it was not discovered until years later, the cause of action accrued, nevertheless, at the time of the act or omission complained of.

Medical Liability Act contains a traditional statute of limitations, one which commences the running of the statute from the accrual of the cause of action, and is not subject to constitutional infirmity under § 45.

381 So.2d 26, at p. 31.

Street did not consider whether the Act was unconstitutional on the basis that it addressed more than one subject, the second and only remaining contention made here.

We hold that Act No. 513 does not contain more than one subject in contravention of the provisions of § 45 of the Constitution of Alabama of 1901. It is evident from the title as well as the provisions of the Act that the Act is a comprehensive statute dealing with medical liability in this state.

The title and Section 1 of Act No. 513 are as follows:

AN ACT

To provide a definite statute of limitations in liability actions; to eliminate the ad damnum clause in complaints alleging liability; to define the duty of care; to require warranties of cure to be in writing; to prevent advance payments from being considered admissions of liability. In lieu of the scintilla rule, to require evidence of substantial weight and provative (sic) effect in medical liability actions; to provide for periodic payments of awards in medical liability actions; to authorize the Insurance Commissioner to establish a joint underwriting association and to provide rules for such joint underwriting association; to provide for voluntary arbitration of disputes; and to require insurance carriers to report claims and costs incurred to the Insurance Commissioners.

Be It Enacted by the Legislature of Alabama :

Section 1. This act may be cited and known as the "Alabama Medical Liability Act."

Every provision of the Act is referred to seriatim in the title. Although better draftsmanship might have dictated a general statement of the scope or purpose of the Act before delineating each provision, nevertheless, the purpose of § 45 was served. As the Court said many years ago in Lindsay v. United States Savings & Loan Association, 120 Ala. 156, 24 So. 171 (1898):

The Constitution does not contemplate a multiplicity of titles; it contemplates but one title, and leaves the form which may be given it to legislative discretion. It may be expressed in general words, or it may be a brief statement of the subject, or it may be an index to, or an abstract of, the contents of the Act.

120 Ala. at 172, 24 So. 171. The subject of the Act is sufficiently expressed in the title, and the Act contains no more than one subject.

As we have so often said, § 45 should not be construed so as to handicap the legislative process. The constitutional purpose in requiring single subject legislation is laudatory but has been met when the separate provisions of a bill are germane to the bill's general purpose. In Opinion of the Justices, 294 Ala. 555, 319 So.2d 682 (1975), the purpose of § 45 is addressed as follows:

The purposes of the "single subject" requirement Const. of Ala., 1901, § 45, are generally stated as: (a) notification to the public of the nature of the pending legislation; (b) avoidance of fraud on the legislature by inadvertent passage of provisions not related to the title; and (c) prevention of logrolling legislation. Boswell v. State, 290 Ala. 349, 276 So.2d 592, appeal dismissed 414 U.S. 1118, 94 S.Ct. 855, 38 L.Ed.2d 747 (1973). The title of a bill need not specify every provision contained. The "one subject" test of § 45 is satisfied when the bill's provisions are all referable to and cognate of the subject of the bill. Boswell, supra; Opinion of the Justices, 275 Ala. 254, 154 So.2d 12 (1963).

Because we hold that Act No. 513 meets the requirements of § 45 of the Constitution, we need not address the argument advanced that constitutionality is dependent upon Act No. 20, Acts of Alabama, Regular Session 1977, by which Act the 1975 Code was adopted.

We have stated that a statute of limitations is generally viewed as a remedial statute so that the statute in effect at the time suit is filed rather than the one in effect at the time of the accrual of the cause of action applies unless the later statute clearly states to the contrary. Street v. City of Anniston, supra. Furthermore, the legislature may create or shorten periods of limitation provided a reasonable time is allowed for existing causes of action to be brought. Street, supra; Coleman v. Holmes, 44 Ala. 124 (1870). This enactment does provide such a reasonable time for existing causes of action to be brought.

Under the provisions of Act No. 513, the plaintiff in this case had four years from January, 1973, until January, 1977, to bring his action. The Act also provides for one year after its effective date to bring an action if more than four years have theretofore expired. Thus, it provided a reasonable time for bringing the action. This action was not brought within that time and was, therefore, properly dismissed.

The judgment appealed from is affirmed.

AFFIRMED.

TORBERT, C. J., and MADDOX, ALMON, SHORES and ADAMS, JJ., concur.

JONES, J., concurs specially.

FAULKNER, EMBRY and BEATTY, JJ., dissent.

JONES, Justice (concurring specially):

I concur specially in order to emphasize the limited effect of the instant opinion and to analyze its holding in relationship to our recent cases of Street v. City of Anniston, 381 So.2d 26 (Ala. 1980), and Ramey v. Guyton (1980) 394 So.2d 2 (Ala.1980).

It can hardly be overly emphasized that the only constitutional challenge made in the instant case is that the Medical Malpractice Statute (Act 513) violates the multiple subject prohibition of § 45. I acknowledge that the inartful draftsmanship of this Act's title provides a highly persuasive argument in support of Appellant's claim of constitutional invalidity. Nonetheless, I agree with the majority that, despite the title's technical deficiencies, the summation of all of its parts meets the single subject requirement of § 45.

The single subject test is not violated merely because the Act deals with multiple aspects of the same subject matter. Clearly, § 4 (creating a new statute of limitations), § 5 (prohibiting ad damnum clauses), § 6 (establishing the duty of care), § 8 (allowing arbitration), § 10 (providing defendants an optional mode for payment of certain judgments), and § 11 (defining the effect of advance payments) all relate to medical...