Tucker v. Tombigbee Healthcare Authority, 153 So. 3d 734

2006 hysterectomy performed by Hodge at Bryan W. Whitfield Memorial Hospital; 2011 discovery of a retained surgical clamp and 2012 surgery to remove it.
Gertha Tucker filed suit on March 5, 2012 alleging medical malpractice under Alabama acts; later amended to add husband David Tucker (estate representative) in March 2012 and August 2012 to assert wrongful-death claims.
Defendants moved to dismiss under § 6-5-482, arguing accrual and repose barred the claims; § 6-5-482 provides a two-year period and a four-year repose with discovery tolling.
Gertha died on April 8, 2012; David substituted as administrator ad litem on July 25, 2012; second amended complaint added wrongful-death claim on August 6, 2012.
Trial court denied some motions in August 2012; later motions and supplements led to denial of summary judgment in July 2013; mandamus petitions were filed.
Court held that a writ is proper to dismiss under the four-year repose where the face of the complaint shows a violation of § 6-5-482(a).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the medical-malpractice claim accrued in 2006 so as to be barred by § 6-5-482(a).	Tuckers: accrual occurred upon discovery in 2011.	Hodge/Tombigbee: accrual occurred at the 2006 act, regardless of discovery.	Yes; accrual deemed to have occurred in 2006, triggering repose barred the 2012 claim.
Whether the wrongful-death claim is viable given the medical-malpractice bar at death.	Estate could pursue wrongful death if a viable medical-malpractice claim existed at death.	No viable medical-malpractice claim at death means wrongful death barred.	Yes; because no viable claim at death, wrongful-death claim barred.
Whether mandamus is an appropriate remedy given the interlocutory nature of the order.	Petitioners seek mandamus to avoid waiting for ordinary appeals.	Mandamus normally unavailable; Rule 5 permissive appeal inadequate.	Yes; mandamus appropriate under the unique circumstances to avoid injustice.
Whether Rule 5 permissive appeal or final-judgment appeal was an adequate remedy.	Rule 5 appeal could be pursued; ultimate remedy may be final judgment.	No adequate remedy; Rule 5 discretionary and may not be certified.	No; neither Rule 5 nor final-judgment appeal adequate in this case.

Jones v. McDonald, 631 So.2d 869 (Ala. 1993) (accrual at time of negligent act in malpractice)
Street v. City of Anniston, 381 So.2d 26 (Ala. 1980) (malpractice accrual when act or omission causes legal injury)
Grabert v. Lightfoot, 571 So.2d 293 (Ala. 1990) (accrual when act causes immediate injury; exceptions noted)
Mobile Infirmary v. Delchamps, 642 So.2d 954 (Ala. 1994) (discovery vs. accrual in determining accrual date)
Crosslin v. Health Care Authority of Huntsville, 5 So.3d 1193 (Ala. 2008) (discovery-based accrual where injury occurs after negligent act)
Delchamps, 642 So.2d 954 (Ala. 1994) (discusses accrual when injury evidences later)
Hall v. Chi, 782 So.2d 218 (Ala. 2000) (viability of wrongful-death claim when decedent lacked viable claim)
Ex parte Jackson, 780 So.2d 681 (Ala. 2000) (exception allowing mandamus review of denial of summary judgment in limited context)
Ex parte Nall, 879 So.2d 541 (Ala. 2003) (mandamus standard for extraordinary relief)
Ex parte Alamo Title Co., 128 So.3d 700 (Ala. 2013) (Rule 5 certification and adequacy of remedy discussed)