Medical Malpractice Lawyers in Montgomery, Alabama

What to do first if you think something went wrong

Ask for your records, and ask for all of them. Under 45 C.F.R. § 164.524 you have a right to inspect and copy your own protected health information, and the provider must act within thirty (30) days, with one extension of up to another thirty (30) days on written notice. Ask for the complete chart, not the discharge summary.

Keep going to your appointments, and write down what you remember while you still remember it. Ala. Code § 6-5-551 requires the complaint to describe each act and omission in detail, with the date, time and place where feasible and ascertainable.

Know what a Board complaint does. The Alabama Board of Medical Examiners sits here in Montgomery, on Washington Avenue, and investigates physicians. In its own words, though, it does "not have the authority to order reimbursement or award damages." It is not a lawsuit and it does not stop the clock in Ala. Code § 6-5-482. That clock does not wait on a diagnosis, it runs from the act.

How medical malpractice cases work in Alabama

A plaintiff must establish three (3) things: the applicable standard of care, the provider's deviation from it, and a proximate causal connection between that deviation and the injury. Hrynkiw v. Trammell (Ala. 2012), quoting Giles v. Brookwood Health Services, Inc., 5 So. 3d 533 (Ala. 2008). Miss one and there is no case.

The burden is statutory. Ala. Code § 6-5-548(a) puts on the plaintiff "the burden of proving by substantial evidence that the health care provider failed to exercise reasonable care, skill, and diligence as other similarly situated health care providers in the same general line of practice ordinarily have and exercise in a like case." Simply put, the question is not whether another doctor would have done it differently. It is whether this one fell below what providers like him are expected to do. Ala. Code § 6-5-549 makes substantial evidence the minimum standard for testing the sufficiency of the evidence in these cases.

That proof almost always has to come from a physician. The exception is narrow: where the want of skill is so apparent a layman can understand it — classically, a foreign instrumentality found in the body after surgery, or an injury in no way connected to the condition being treated. Anderson v. Alabama Reference Laboratories (Ala. 2000), quoting Allred v. Shirley, 598 So. 2d 1347 (Ala. 1992).

Who is allowed to testify against your doctor

This is where Alabama cases quietly die. Ala. Code § 6-5-548(e) lets a health care provider testify as an expert against another "only if he or she is a 'similarly situated health care provider.'" Which definition applies turns on the credentials of the person being sued, not the expert's.

If the defendant is not board certified, subsection (b) applies: the expert must be licensed, trained and experienced in the same discipline or school of practice, and must have practiced in it during the year preceding the alleged breach. If the defendant is board certified as a specialist and holds himself out as one, subsection (c) is stricter — the expert must also be certified by an appropriate American board in the same specialty and have practiced in it during the year preceding. Holcomb v. Carraway (Ala. 2006).

Why does that last word matter? Because an expert who retired or changed subspecialties in the wrong year can be excluded, and then the standard of care is unproven. It is important to understand that this is a threshold question, not one for the jury.

Who can be held responsible

The person who made the error is the obvious defendant. He is often not the only one.

An employing practice, clinic or hospital answers for employees acting in the line and scope of their work, and separately for its own conduct — Ala. Code § 6-5-551 reaches acts or omissions in providing health care or in "the hiring, training, supervision, retention, or termination of care givers." While the instinct is to blame the doctor in the room, the failure is often upstream: a result nobody reported, an order entered on the wrong chart, a charted change in condition nobody acted on.

Deadlines, and the complaint the statute requires

Most Alabama injury claims run on Ala. Code § 6-2-38(l), a flat two (2) years. Medical cases do not. Ala. Code § 6-5-482(a) requires the action to be "commenced within two years next after the act ... giving rise to the claim" — the clock starts at the act or omission, often long before the patient knows anything went wrong.

The discovery exception is narrower than people expect. Where the claim "is not discovered and could not reasonably have been discovered within such period," suit may be brought within six (6) months "from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier." The window can open the day you had enough to start asking. Over all of it sits an outer limit — "in no event may the action be commenced more than four years after such act" — which subsection (b) carries through notwithstanding the general tolling statutes. A minor under four (4) years of age has until his eighth birthday. Where the patient died, Ala. Code § 6-5-410 gives the estate's personal representative two (2) years from the death.

The complaint itself has to read like an investigation already happened. Ala. Code § 6-5-551 calls for "a detailed specification and factual description of each act and omission" alleged, makes a complaint that lacks one "subject to dismissal," confines discovery to what was pleaded, and requires any amendment adding a newly discovered act at least ninety (90) days before trial.

Alabama's contributory negligence rule

Alabama is one of only four (4) states — with Maryland, North Carolina and Virginia — plus the District of Columbia that still applies contributory negligence. Under Golden v. McCurry, 392 So. 2d 815 (Ala. 1980), a plaintiff whose own negligence contributed to the injury recovers nothing on a simple negligence claim, however small his share; the plaintiff there had stipulated he was one percent at fault.

In a medical case that defense arrives dressed as a story about the patient. You did not come back for the follow-up. You did not take it as prescribed. You left against medical advice. As recently as KOE, LLC v. Ratliff (Ala. 2024) the Supreme Court of Alabama has indicated that the defense must be proven to a jury by substantial evidence. That is the defendants burden, not yours — but it is a live defense, and it is why to be careful with recorded statements.

What affects a case's value

Alabama has no statutory cap on medical-malpractice damages. The Legislature passed two (2) and the Supreme Court of Alabama struck both as violating the right to trial by jury and equal protection under the Alabama Constitution: the $400,000 noneconomic cap in Ala. Code § 6-5-544(b), in Moore v. Mobile Infirmary Association, 592 So. 2d 156 (Ala. 1991); and the $1,000,000 limit in Ala. Code § 6-5-547, in Smith v. Schulte, 671 So. 2d 1334 (Ala. 1995).

Death cases are measured differently here, and families are rarely told this early. Damages under Ala. Code § 6-5-410 are punitive in nature rather than compensatory. Geohagan v. General Motors Corp., 279 So. 2d 436 (Ala. 1973). The jury is not asked what the family lost. It is asked how wrongful the conduct was. None of that is a prediction. What a case may be worth depends on the proof, the permanence of the harm, and the coverage available.

Medical malpractice cases in Montgomery

A case filed in state court here goes to the Circuit Court for the Fifteenth Judicial Circuit, at the Phelps-Price Justice Center on South Lawrence Street. Where the parties are citizens of different states and more than $75,000 is at stake, a defendant may be able to remove it to the Middle District of Alabama, Northern Division. 28 U.S.C. § 1332(a).

Whether a Montgomery hospital can be sued at all has been litigated, and answered. In Health Care Authority for Baptist Health v. Davis (Ala. 2013), tried in the Montgomery Circuit Court over care at Baptist Medical Center East, the Authority argued it was an arm of the State and immune, and alternatively that a $100,000 governmental damages cap applied. The Supreme Court of Alabama rejected both, holding that "operating a hospital is not a uniquely governmental function."

Frequently asked questions

How long do I have to file a medical malpractice claim in Alabama?

Generally two (2) years from the act or omission under Ala. Code § 6-5-482(a) — not two years from the day you found out. A six (6) month discovery exception applies in narrow circumstances, with an outer bar of four (4) years from the act. A minor under four (4) years of age has until his eighth birthday.

Is a bad result the same thing as malpractice?

No. Alabama requires proof of the standard of care, a deviation from it, and a causal connection to the injury. Complications happen without any breach at all.

Do I need a doctor to testify for me?

In most cases yes. The exceptions are narrow — a foreign instrumentality left in the body after surgery, or an injury with no connection to the condition being treated.

Who is allowed to testify against my doctor in Alabama?

Only a "similarly situated health care provider" under Ala. Code § 6-5-548. If the defendant is board-certified as a specialist and holds himself or herself out as one, the expert generally must be certified by an appropriate American board in the same specialty and have practiced in it during the year preceding the alleged breach.

Can the hospital blame me for what happened?

It can try. Alabama still applies contributory negligence, so a patient found even slightly at fault may recover nothing on a negligence claim. Golden v. McCurry, 392 So. 2d 815 (Ala. 1980). The defense has to prove it by substantial evidence.

Is there a cap on medical malpractice damages in Alabama?

No statutory cap survives. Ala. Code § 6-5-544(b) was held unconstitutional in Moore v. Mobile Infirmary Association, 592 So. 2d 156 (Ala. 1991), and Ala. Code § 6-5-547 in Smith v. Schulte, 671 So. 2d 1334 (Ala. 1995).

Does a complaint to the Alabama Board of Medical Examiners protect my claim?

It does not. The Board investigates licensees and says plainly that it does not have the authority to order reimbursement or award damages. Filing with it does not extend any deadline in Ala. Code § 6-5-482.

What does it cost to talk to a lawyer about a medical malpractice case?

Nothing. We handle these cases on a contingency fee, and there is never a fee for legal services unless we collect for you.

Talk to a Montgomery medical malpractice lawyer

Barfoot & Schoettker is a small Montgomery firm whose practice focuses on personal injury, including medical malpractice, birth injury and wrongful death cases across central Alabama.

If you believe you or a family member was harmed by medical negligence, contact us for a free case evaluation at (334) 834-3444. There is never a fee for legal services, unless we collect for you. The records are where these cases are won or lost, and the sooner they are in front of a lawyer the better.