Tucker v. Nichols

Decision Date06 May 1983
Citation431 So.2d 1263
PartiesDr. Mylan S. TUCKER v. Joseph A. NICHOLS. 81-745.
CourtAlabama Supreme Court

John M. Laney, Jr. of London, Yancey, Clark & Allen, Birmingham, for appellant.

Charles A. Dauphin and William J. Baxley of Baxley, Beck & Dillard, Birmingham, for appellee.

JONES, Justice.

This medical malpractice case concerns an alleged ambiguity in the statute of limitations provisions of the Medical Malpractice Act. The Defendant appeals from the trial court's order overruling his motion for summary judgment. We affirm.

The statute of limitations involved here, § 6-5-482(a), Code of 1975, 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.)

There is a two-year statute of limitations which is supplemented with a six-months saving clause applicable to causes of action not discovered within two years.

The relevant dates for applying the statute to this case are undisputed. The allegedly negligent act (failure to diagnose a fractured vertebra in Plaintiff's back) was committed on April 17, 1979. The Plaintiff discovered the cause of action on March 4, 1981, less than two years later, when X-rays were taken of his back for treatment of an unrelated injury. Suit was not filed until August 12, 1981, some two years and four months after the allegedly negligent act occurred, but less than six months after the discovery of the cause of action.

The Plaintiff contends that the saving clause should be applied to this case even though the statute makes the clause applicable only when discovery of the cause of action took place after the two-year period. The trial court overruled the defendant's motion for summary judgment on this issue, finding:

"[T]he meaning and intent of the Alabama Code Section 6-5-482 is not clear.


"This Court interprets section (a) of [6-5-482] to mean that the plaintiff herein has six months from the date of discovery, or six months from the date of discovery of facts which would reasonably lead to discovery, whichever is earlier, to file suit. It is the finding of this Court that the plaintiff herein had six months from March 4, 1981, to file this lawsuit before the statute of limitations would bar an action under the Medical Liability Act."

Tucker then petitioned for leave to appeal from the interlocutory order overruling the motion for summary judgment, pursuant to Rule 5, Alabama Rules of Appellate Procedure. We granted permission. Tucker now urges this Court to reverse the trial court's ruling and to render summary judgment in his favor.

The legislature first enacted a medical malpractice statute of limitations in 1953. Act of September 17, 1953, No. 766, 1953 Ala.Acts 1027 (codified as Code of Ala., Tit. 7, § 25(1) (1940)). This Act was the precursor to our current medical liability act enacted in 1975, Code of Ala.1975, § 6-5-480, et seq. In the present case we are concerned with the construction of § 6-5-482(a). This section is determinative of whether the plaintiff's cause of action was timely filed.

Appellee/Plaintiff defends the ruling of the trial court on the basis that its construction of the statute was constitutionally mandated. Lankford v. Sullivan, Long & Hagerty, 416 So.2d 996 (Ala.1982).

Appellant/Defendant contends that constitutional considerations are foreclosed here because they were not raised below, citing Woodham v. Woodham, 387 So.2d 150 (Ala.1980); and Cooper v. Green, 359 So.2d 377 (Ala.1978). As the cited cases indicate, however, this prohibition finds its application in the context of a challenge to the trial court's ruling on issues raised for the first time on appeal; that is to say, this rule of appellate review prohibits reversal of a judgment below on grounds not raised and presented to the trial court.

Here, where the constitutional considerations are urged in support of the ruling below, we are governed by the long-standing, well-established rule that the appellant has an affirmative duty of showing error upon the record. Ala. Dig., Appeal and Error, Key No. 901. This rule is premised upon the fundamental proposition that an appellate court will not presume error and will affirm the judgment appealed from if supported on any valid legal ground. Sterling Oil of Oklahoma, Inc. v. Pack, 291 Ala. 727, 287 So.2d 847 (1973).

We begin our analysis with the trial court's interpretation of the medical malpractice statute of limitations in light of this Court's holding in Lankford. Obviously, when the Defendant raised the affirmative...

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    • Alabama Supreme Court
    • June 28, 2019
    ...on appeal. "In order to secure a reversal, ‘the appellant has an affirmative duty of showing error upon the record.’ Tucker v. Nichols, 431 So. 2d 1263, 1264 (Ala. 1983). It is a familiar principle of law:" ‘When an appellant confronts an issue below that the appellee contends warrants a ju......
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    ...below, for this Court `will affirm the judgment appealed from if supported on any valid legal ground.'" (quoting Tucker v. Nichols, 431 So.2d 1263, 1265 (Ala. 1983))). 9. The viability of this question inevitably returns us to, and reinforces the viability of, the long-established presumpti......
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    ...See Marvin's, Inc. v. Robertson, 608 So.2d 391, 393 (Ala. 1992); Turner v. Clutts, 565 So.2d 92, 94 (Ala.1990); Tucker v. Nichols, 431 So.2d 1263, 1264-65 (Ala.1983); and Dougherty v. Hovater, 425 So.2d 1082, 1084 (Ala. 1983). As previously discussed, the Legislature and the parties subject......
  • Corkill v. Knowles
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    ...occurs after the expiration of the period provided, a reasonable time continues to exist for the claim to be made. Tucker v. Nichols, 431 So.2d 1263 (Ala.1983); Kenyon, 688 P.2d at 979, Cameron, J., concurring; Austin v. Litvak, 682 P.2d 41 (Colo.1984). See also Coffey, 506 A.2d 310. The ob......
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1 books & journal articles
  • Alabama's Appellate Standards of Review in Civil Cases
    • United States
    • Alabama State Bar Alabama Lawyer No. 81-1, January 2020
    • Invalid date
    ...if supported on any valid legal ground.'" Smith v. Equifax Services, Inc., 537 So. 2d 463, 465 (Ala. 1988) (quoting Tucker v. Nichols ,431 So. 2d 1263, 1265 (Ala. 1983)). c. Interlocutory appeals pursuant to Ala. R. App. P. 5 "As this Court stated in Morrow v. Caldwell, 153 So. 3d 764, 767 ......

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