Undiagnosed Cancer under Alabama’s Statute of Repose

By Alex Stein

Alabama Code Section 6–5–482(a) that extends to “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” prescribes, (inter alia) that –

“in no event may the action be commenced more than four years after such act.”

The Alabama Supreme Court interprets this provision as beginning the four-year repose period when the plaintiff suffers “legal injury” from the defendant’s malpractice. See Crosslin v. Health Care Auth. of Huntsville, 5 So.3d 1193, 1196 (Ala. 2008) (“‘[w]hen the wrongful act or omission and the resulting legal injury do not occur simultaneously, the cause of action accrues and the limitations period of § 6–5–482 commences when the legal injury occurs’” (quoting Mobile Infirmary v. Delchamps, 642 So.2d 954, 958 (Ala. 1994)). This interpretation is far more generous to plaintiffs than the conventional doctrine of repose, under which the countdown of the statutory repose period begins on the day of the physician’s malpractice even when the patient develops the resulting illness or injury later on. For my analysis of the conventional doctrine of repose, see here and here.

This plaintiff-friendly interpretation did not help the plaintiff in Cutler v. U. Ala. Health Services Foundation, — So.3d —- 2016 WL 3654760 (Ala. 2016).

In that recent case, the plaintiff complained that the defendants failed to inform him of a malignant tumor/lesion in the right frontal region of his brain that was discovered by MRI but misidentified as a bruise from a motorcycle accident. This mistake occurred on June 28, 2005, one day after the accident. As a result, the plaintiff lost his ability to sue the defendants on June 29, 2009. The plaintiff’s suit, filed in October 2015, consequently was dismissed by the trial court. The Alabama Supreme Court affirmed that decision.

The plaintiff tried to save the day by relying on Alabama’s Crosslin precedent, but that case was different from his. In Crosslin, the plaintiff’s doctors failed to inform him about a tumor in his pituitary gland, but the plaintiff argued that the tumor was not malignant at the time of that malpractice. He claimed that the tumor became malignant and caused him vision loss in both of his eyes later on. According to the plaintiff, Mr. Crosslin, this “legal injury” was less than four years old when he filed the suit, and for that reason he was not precluded from filing the suit. In Cutler, by contrast, the plaintiff argued that the misdiagnosed tumor (or lesion) was malignant from day one. For that reason, the Alabama Supreme Court decided that the plaintiff’s suit was barred by the statute of repose.

The Cutler and Crosslin decisions distort the litigation incentives for Alabama’s patients and doctors in cases involving misdiagnosed tumors and lesions. For an aggrieved patient whose suit faces extinction under the statute of repose, the best strategy is to claim that the misdiagnosed tumor (or lesion) became malignant at a later point in time and that the malignancy is less than four years old. Such a claim might weaken the patient’s allegation of diagnostic malpractice, but taking this risk will always be preferable to losing the case instantaneously under the repose provision. For doctors and hospitals, on the other hand, the best strategy is to claim (based on old records and scans) that malignancy was already present at the time of the diagnostic error. Such a claim might constitute an implicit acknowledgment of malpractice, but this acknowledgment will have no consequences because the repose provision will kill the patient’s suit. The conventional repose doctrine prevents such distortions, but it does so by denying remedies to at least some deserving plaintiffs.

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About Alex Stein

Alex Stein is a Professor of Law at Brooklyn Law School. Before joining Brooklyn, Alex was a Professor of Law at Cardozo Law School (2004-2016) and served for more than a decade at the Hebrew University of Jerusalem Faculty of Law (1991-2004). He also held visiting professorial appointments at Alabama, Columbia, Miami, and Yale Law Schools. In Fall 2016, he visited Harvard Law School, where he taught Torts and a seminar on Medical Malpractice. Alex's specialty areas include Torts, Medical Malpractice, Evidence, as well as general legal theory and economic analysis of law. He authors three books, An Analytical Approach to Evidence (with Ronald J. Allen et al.) (6th ed. 2016); Foundations of Evidence Law (2005) and Tort Liability under Uncertainty (2001, with Ariel Porat), and over sixty articles of which many have appeared in leading journals. Alex was one of the founding editors of Theoretical Inquiries in Law and is on the editorial board of the International Journal of Evidence & Proof. In 2013, he launched an e-journal STEIN on Medical Malpractice, http://www.steinmedicalmalpractice.com, that covers all significant developments in medical malpractice laws across the United States. He graduated from the Hebrew University of Jerusalem and earned a Ph.D. from the University of London.