Wrongful Death From Medical Malpractice in Alabama: Who Can Sue and When

Attorney Answer

In Alabama, a death caused by medical malpractice can be the basis of a wrongful-death claim. Only the personal representative of the estate can bring it, and it must be filed within two years of the death. That two years holds only if the person who died still had a timely malpractice claim on the day they died. So when the treatment was long before the death, the malpractice deadlines matter too.

Who can bring it. Ala. Code § 6-5-410(a):

(a) A personal representative may commence an action and recover such damages as the jury may assess in a court of competent jurisdiction within the State of Alabama where provided for in subsection (e), and not elsewhere, for the wrongful act, omission, or negligence of any person, persons, or corporation, his or her or their servants or agents, whereby the death of the testator or intestate was caused, provided the testator or intestate could have commenced an action for the wrongful act, omission, or negligence if it had not caused death.

A personal representative is the person a probate court appoints to act for the estate: the executor named in a will, or an administrator where there is no will. If no one has been appointed, that is the first step, and a lawyer can handle it.

The deadline. Ala. Code § 6-5-410(d):

(d) The action must be commenced within two years from and after the death of the testator or intestate.

That two years runs from the death, not from the treatment. But Alabama courts allow it only where the person who died could still have brought their own malpractice claim at the moment of death, measured by the malpractice statute, Ala. Code § 6-5-482(a):

(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.

So if the treatment complained of took place more than four years before the death, the claim may already be gone. If it was more recent, two years from the death is the deadline to plan around.

How the case is run. The Alabama Medical Liability Act governs a malpractice wrongful-death case just as it does any other malpractice case. Ala. Code § 6-5-551:

In any action for injury, damages, or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care, whether resulting from acts or omissions in providing health care, or the hiring, training, supervision, retention, or termination of care givers, the Alabama Medical Liability Act shall govern the parameters of discovery and all aspects of the action.

That means proof from a qualified provider in the same field (Ala. Code § 6-5-548(a)) and a complaint that specifies each act alleged.

Where the money goes. Ala. Code § 6-5-410(c):

(c) The damages recovered are not subject to the payment of the debts or liabilities of the testator or intestate, but must be distributed according to the statute of distributions.

Alabama's wrongful-death statute leaves the amount to the jury, and what is recovered is distributed under the statute of distributions rather than used to pay the estate's debts. How Alabama juries are instructed on those damages differs from most states, and a lawyer will explain it.

What you can do

1. Find out whether a personal representative has been appointed, or whether the will names an executor.

2. Request the medical records of the treatment, which the personal representative is generally entitled to obtain.

3. Write down the dates of the treatment and of the death.

4. Speak to an Alabama malpractice lawyer promptly. Most offer a free first consultation, and they need time for an expert's review.

⏱ Time limits apply. Two years from the death under Ala. Code § 6-5-410(d), provided the claim was still timely under Ala. Code § 6-5-482(a) on the day of death.