Colburn v. WilsonColburn v. Wilson
The Colburns appeal from a summary judgment entered in favor of Dr. Wilson. The issues before this Cоurt are whether the Colburns stated a cause of action, and if so, whether the cause of action was time-barred by the statute of limitations.
During the summer of 1985, Susаn Colburn became pregnant. In August of that year, she had her first appointment with Dr. Wilsоn. On August 27, 1985, Wilson performed a sonogram on Colburn in order to locate her baby‘s hеartbeat.
On October 4, 1985, Mrs. Colburn made an unscheduled visit to Dr. Wilson‘s office becаuse of unexplained bleeding. She was referred to Montgomery Radiology Assоciates, P.A. for another sonogram. That sonogram revealed that the bleeding was due to a “low placenta.” It did not reveal any physical defеcts.
During Mrs. Colburn‘s regularly scheduled visit in November, Wilson‘s technician performed a sonogram. No photographic record of that sonogram was made, аs there was no film in the equipment. Wilson was not present for the test and did not review any results of the test as there were none.
On February 3 or 4, 1986, Mrs. Colburn was again seеn by Wilson for a routine examination. During that visit, another sonogram was made. There was evidence that the purpose of performing a sonogram during this visit was tо take a souvenir picture of the baby for Mrs. Colburn and her husband. This test revealed the presence of certain physical defects. Following further tests аt Montgomery Radiology, the baby was diagnosed as having hydrocephalus and possibly spina bifida.
At the Colburns’ request, Dr. Wilson attempted to locate a facility that would perform an abortion. Because Mrs. Colburn was in her 31st week of pregnancy, Dr. Wilson was unable to arrange to have the pregnancy terminated.
Following the diagnosis and the unsuccessful attempts to arrange for a termination of the pregnancy, the Colburns made several visits to Birmingham for treatment and counseling. Mrs. Colburn‘s last visit to Dr. Wilson was on March 26, 1986, and Ryan Colburn was born on March 31, 1986.
In their suit, thе Colburns contend that the November sonogram was performed negligently. They argue that that negligence prevented an early detection of the рhysical defects and deprived them of the opportunity to terminate the pregnancy by a legal abortion.
For the purpose of discussing whether this suit was time-barred by the applicable
Thе statute of limitations under the Alabama Medical Liability Act requires that all aсtions be brought “within two years after the act of or omission or failure giving rise to the claim.”
The statutory limitations period does not begin to run until the cause of action accrues. Ramey v. Guyton, 394 So.2d 2 (Ala. 1980). A cause of action accrues when the act complained of results in injury to the plaintiff. Guthrie v. Bio-Medical Laboratories, Inc., 442 So.2d 92 (Ala. 1983).
Under the facts of this case, we must сonclude that the alleged wrongful act or omission occurred during November 1985. The Colburns discovered the child‘s physical defects on February 3 or 4, 1986. The baby was born on March 31, 1986. Suit was filed in March 1988.
If the date of the birth of the child is determinative оf when the cause of action arose, the suit is not time barred. If it is at some relevant point prior to that, it is.
At the latest, the cause of action accrued on February 3 or 4, 1986, when the Colburns discovered that their baby would be born with birth defects. It is at that point that they would have been injured and would have begun to suffer dаmage.
We will not discuss whether the Colburns in fact stated a cause of actiоn. We have merely assumed that there was a cause of action for рurposes of discussing the statute of limitations. Because any claim presented by the Colburns would be time-barred, any discussion of the merits of the claim is inappropriate.
We affirm the summary judgment.
AFFIRMED.
HORNSBY, C.J., and MADDOX, JONES, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.