MEDICAL MALPRACTICE & FOUR-YEAR PERIOD OF REPOSE - CUTLER V. UNIV. OF ALA. HEALTH SERVS. FOUNDATION, P.C.
Cutler v. Univ. of Ala. Health Servs. Foundation, P.C., [Ms. 1150546, July 8, 2016] __ So. 3d __ (Ala. 2016). The Supreme Court affirms the Jefferson Circuit Court's dismissal of a medical-malpractice action against the University of Alabama Health Services Foundation, P.C. and Paul G. Matz, M.D., based upon § 6-5-482(a), Ala. Code 1975's four-year period of repose. The opinion notes the alleged medical malpractice occurred in 2005 "when the defendants failed to inform Cutler of the presence of a 2 cm tumor/lesion in the right frontal region of his brain." Ms. *8. But Cutler did not file his complaint against the defendants until 2015, more than 10 years after the alleged malpractice occurred. Id. Cutler alleged his cause of action did not accrue until 2015 when he "first suffered a legal injury – the seizure requiring him to undergo a surgical resection of the tumor/lesion, which was ultimately diagnosed as Grade II astrocytoma." Ibid. The Supreme Court rejected this contention, reiterating that "[i]t is well settled that in medical-malpractice actions, the legal injury occurs at the time of the negligent act or omission, regardless of whether the injury is or could be discovered within the statutory period." Ms. *15. Here, because Cutler's complaint alleged "that his tumor/lesion began its adverse growth process and/or became malignant 'within the four years following June 28, 2005' and/or that 'the process was started within the two years after [the MRI] on June 28, 2005' and "the four year statute of repose would have begun to run at the latest by June 28, 2009, despite Cutler not learning of the presence of the tumor/lesion until 2015." Ms. *18. Citing Kline v. Ashland, Inc., 970 So. 2d 755, 761 (Ala. 2007) (Harwood, J., dissenting), the Court reiterated its rule concerning when an injury is "manifest" for purposes of beginning the running of a statute of limitations or a period of repose:
'Manifest' in this sense does not mean that the injured person must be personally aware of the injury or must know its cause or origin. All that is required is that there be in fact a physical injury manifested, even if the injured person is ignorant of it for some period after its development.