
    Dr. Todd TOBIASSEN v. Craig R. SAWYER. Baldwin County Eastern Shore Health Care Authority d/b/a Thomas Hospital v. Craig R. Sawyer.
    1030044 and 1030043.
    Supreme Court of Alabama.
    Dec. 30, 2004.
    Joseph S. Miller and W. Christopher Hines III of Starnes & Atchison, LLP, Birmingham, for appellant Dr. Todd To-biassen.
    Norman E. Waldrop, Jr., A. Edwin Stuardi III, and Mary Carol Ladd of Arm-brecht Jackson, LLP, Mobile, for appellant Thomas Hospital.
    Cali A. Wendt, Fairhope, for appellee.
   BROWN, Justice.

The defendants in this medical-malpractice action, Dr. Todd Tobiassen and the Baldwin County Eastern Shore Health Care Authority d/b/a Thomas Hospital, petitioned separately, pursuant to Rule 5, Ala. RApp. P., for permission to appeal from the Baldwin Circuit Court’s denial of their motions for a judgment on the pleadings and for a summary judgment. We granted permission to appeal, and we now reverse .the trial court’s denial of Dr. To-biassen and Thomas Hospital’s motions and render a judgment for them.

Facts and Procedural History

On December 1, 2000, the plaintiff below, Craig R. Sawyer, sought treatment in the emergency room of Thomas Hospital. He complained of a headache, numbness on the right side of his body, impaired balance, and sinus pressure. Dr. Tobias-sen evaluated Sawyer and ordered an MRI examination of Sawyer’s brain. Additionally, Sawyer underwent a “spinal tap”-^or lumbar puncture — in which a sample of cerebrospinal fluid was obtained and analyzed. According to Dr. Tobiassen’s emergency-room notes, which are included in the record, Sawyer was prescribed certain medication and was instructed to have a follow-up visit with a neurologist, Dr. Stabler. Sawyer was released from the emergency room later that day.

The next day, December 2, 2000, Sawyer returned to Thomas Hospital with similar symptoms; he was admitted to the hospital at that time. On December 5, 2000, while he was still a patient at Thomas Hospital, Sawyer was told that he had suffered a stroke.

On December 5, 2002, Sawyer sued Dr. Tobiassen and Thomas Hospital alleging negligence and medical malpractice under the Alabama Medical Liability Act, Ala. Code 1975, § 6-5-480 et seq. Sawyer’s negligence count stated, in pertinent part:

“2. On December 1, 2000, [Sawyer] was treated at Thomas Hospital by Dr. To-baissen [sic] for the following symptoms: severe headache, impaired balance, numbness to only one side of the body, and tingling on only one side of the body. [Sawyer] informed the triage nurse in the emergency room that he felt he was having a stroke based on his symptoms.
“3. [Sawyer’s] symptoms had been caused by a stroke.
“4. [Sawyer] was treated for spinal infection, ... which [Dr. Tobiassen] admitted was inconsistent with symptoms of [Sawyer]. [Sawyer] was discharged from the emergency room at Thomas Hospital without treatment or diagnosis for stroke.
“4[sic]. [Sawyer] suffered another stroke at home after discharge from Thomas Hospital emergency room. [Sawyer] was informed on Tuesday, December 5, 2000 that he had suffered from a stroke. “3[sic]. [Dr. Tobiassen’s] care for [Sawyer] was negligent in one or more of the following ways:
“(a) [Dr. Tobiassen and Thomas Hospital] negligently failed to properly diagnose [Sawyer’s] condition;
“(b) [Dr. Tobiassen and Thomas Hospital] did not have in place appropriate procedures and safeguards to prevent the failure to properly diagnose [Sawyer’s] condition;
“(c) [Dr. Tobiassen and Thomas Hospital] lack adequate training measures and supervision of their aids, nurses, and graduate nurses to insure that negligent diagnosis [was] not made; “(d) [Dr. Tobiassen and Thomas Hospital] failed to have adequate staffing and adequately trained staffing[.]
“4[sic], As a result of [Dr. Tobiassen and Thomas Hospital’s] negligence, [Sawyer] was caused to suffer the following injuries and damages: [Sawyer] was permanently injured; [Sawyer] suffered permanent disability in the form of loss' of motor skills in the right hand; permanent numbness in the right side, permanent impaired balance, permanent diminished ability to be productive in trained professional job skill as a law officer; [Sawyer] was permanently disabled; and [Sawyer] was caused to suffer mental anguish and will suffer mental anguish in the future.”

Sawyer’s medical-malpractice count “real-leg[ed]” the negligence count, and further alleged that Dr. Tobiassen and Thomas Hospital’s conduct constituted “a breach of the Alabama Medical Liability Act....”

On March 19, 2003, Dr. Tobiassen filed a motion for a' judgment on the pleadings, arguing that Sawyer’s action was barred by the statute of limitations found in Ala. Code 1975, § 6-5-482(a). On March 24, 2003, Thomas Hospital filed a motion for a summary judgment alleging similar grounds. The trial court denied those motions on July 18, 2003. Both Dr. Tobias-sen and Thomas Hospital filed motions to reconsider. In an order dated September 25, 2003, the trial court denied the motions to reconsider but certified its order as an appealable interlocutory order under Rule 5, Ala. R.App. P. On October 8, 2003, Dr. Tobiassen and Thomas Hospital separately petitioned this Court for permission to appeal. This Court granted the petitions on October 30, 2003, and consolidated the appeals for purposes of writing one opinion.

Discussion

Dr. Tobiassen and Thomas Hospital argue that, under Ala.Code 1975, § 6-5^482, Sawyer’s action is time-barred. Section 6-5-482(a) provides, in pertinent part:

“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 after-wards .... ”

This Code section “ ‘commences the running of the statute from the time of the act or omission giving rise to the cause of action.’ ” Grabert v. Lightfoot, 571 So.2d 293, 294 (Ala.l990)(quoting Street v. City of Anniston, 381 So.2d 26, 31 (Ala.1980)).

In Grabert v. Lightfoot, the plaintiff, Grabert, was diagnosed as having a hernia in his groin area and was referred to Dr. Robert Lightfoot for surgery. Dr. Light-foot operated on Grabert on May 1, 1987, but he was unable to locate the hernia. Grabert continued to have symptoms. On June 8, 1987, Dr. Lightfoot informed Gra-bert that he indeed had a hernia and offered to perform another surgery at no charge. Grabert declined, and on June 26, 1987, he had a second hernia operation performed by a different doctor. This surgery left Grabert disabled. 571 So.2d at 293. Grabert sued Dr. Lightfoot on May 12, 1989. Dr. Lightfoot moved for a summary judgment, arguing that the two-year limitations. period in. § 6-5-482 had expired before Grabert filed his lawsuit. The trial court granted the motion, and Grabert appealed.

This Court stated the issue on appeal as follows: “[Wjhen did Grabert’s cause of action accrue, on May 1, 1987, when Dr. Lightfoot is alleged to have negligently performed the operation, or on June 26, 1987, when Grabert was further damaged during the second operation[?]” 571 So.2d at 294. We stated:

“ ‘The statute of limitations under the Alabama Medical Liability Act requires that all actions be brought “within two years after- the act or omission or failure giving rise to the claim.” Ala.Code 1975, § 6-5-482.
“ ‘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).’
“Grabert contends that the statutory limitations period did not begin to run until the date of the second operation on June 26, 1987. However, it is clear that any negligence that may have been committed by Dr. Lightfoot occurred on May 1, 1987, when the first operation was performed. Further, it is clear that Grabert was damaged at the time of the first operation on May 1, 1987; he had a hernia and Dr. Lightfoot failed to find or to remedy that condition.”

Grabert, 571 So.2d at 294 (quoting Colburn v. Wilson, 570 So.2d 652, 654 (Ala.1990)).

Sawyer’s complaint alleges that on December 1, 2000, he was suffering a stroke, that Dr. Tobiassen and Thomas Hospital were negligent in failing to diagnose the stroke, and that Sawyer was injured as a result. Thus, from the face of the complaint, Sawyer is alleging that the wrongful acts and omissions in this case occurred on December 1, 2000.

On appeal, however, Sawyer argues that his cause of action did not accrue on December 1, 2000, because, he says, he suffered no legal injury on that date. Specifically, Sawyer asserts in his brief that while Dr. Tobiassen’s and Thomas Hospital’s negligent acts or omissions “began” on December 1, 2000, his stroke did not actually occur until December 5, 2000. Then, he contends, a legal injury resulted and his cause of action accrued.

Sawyer’s argument on appeal, however, directly contradicts his complaint. The complaint does not limit the alleged injury in this case to a stroke that occurred on December 5; indeed, it does not even allege any such injury occurred. Instead, Sawyer’s complaint alleges that Dr. To-biassen and Thomas Hospital were negligent on December 1, 2000, because they failed to discover that Sawyer had suffered a stroke and because they sent him home without diagnosing or treating the stroke.

“[W]hen it appears from the face of the complaint that the plaintiffs claim is time-barred, the defendant is entitled to a dismissal based upon the defense of the statute of limitations, without the necessity of offering any proof.” Payton v. Monsanto Co., 801 So.2d 829, 834 (Ala.2001). Accepting as true the facts as alleged by Sawyer in his complaint, the cause of action in this case accrued on December 1, 2000, when Dr. Tobiassen and Thomas Hospital allegedly failed to diagnose a stroke. Sawyer’s action was filed more than two years after December 1, 2000. Therefore, Sawyer’s claims are barred by § 6-5-482(a), and Dr. Tobiassen and Thomas Hospital are entitled to judgment in their favor.

1030044 — REVERSED AND JUDGMENT RENDERED.

1030043 — REVERSED AND JUDGMENT RENDERED.

NABERS, C.J., and HOUSTON, SEE, LYONS, HARWOOD, WOODALL, and STUART, JJ., concur.

JOHNSTONE, J., dissents.

JOHNSTONE, Justice

(dissenting).

An identification of an issue that is not before us is important to a correct analysis of the issue that is before us. The defendant Dr. Tobiassen moved for judgment on the pleadings. The defendant Thomas Hospital moved for summary judgment. The ground of each motion was that the plaintiffs action was barred by the medical-malpractice statute of limitations, § 6-5-482(a), Ala.Code 1975, restricting the plaintiffs time to file suit to two years (subject to an exception not applicable in this case) following the alleged act or omission by the defendants. Each defendant’s motion contended only that some damage proximately resulted from the alleged act or omission more than two years before the plaintiff filed suit.

Neither motion contended that no damage at all proximately1 resulted from the alleged act or omission or that no damage eventually resulted from the alleged act or omission at some time less than two years before the plaintiff filed suit. Because the defendants did not challenge the plaintiffs case on the ground of an absence of evidence of damage proximately resulting from the alleged act or omission and did not thereby shift the burden to the plaintiff to produce such evidence, no absence of such evidence in the materials before the trial court when it considered these motions supplied an alternative ground for judgments in favor of the defendants and against, the plaintiff. Tanner v. State Farm Pire & Cas. Co., 874 So.2d 1058, 1067 n. 3 (Ala.2003); Liberty Nat’l Life Ins. Co. v. University Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala. 2003); Hollis v. City of Brighton, 885 So.2d 135, 140-41 (Ala.2004); McKenzie v. Killian, 887 So.2d 861, 863 (Ala.2004); and Ex parte McCord-Baugh, 894 So.2d 679, 683 (Ala.2004). Neither defendant argued any such alternative ground, and the trial court did not consider any such alternative ground. With this caveat, this dissent will proceed to the issue that is before us.

The statute of limitations is an affirmative defense. Rule 8(c), Ala. R. Civ. P.; Payton v. Monsanto Co., 801 So.2d 829, 833-34 (Ala.2001). “When the action is not time-barred on the face of the complaint, the defendant seeking a judgment of dismissal based on the affirmative defense of limitations has the burden of proof.” Pay-ton, 801 So.2d at 834. As the main opinion acknowledges, the plaintiffs two-year period to file suit did not begin until some damage proximately resulted from the alleged act or omission. Grabert v. Lightfoot, 571 So.2d 293, 294 (Ala.1990).

Damage not proximately resulting from the alleged act or omission would not be recoverable. Bobo v. Bryant, 706 So.2d 763, 766 (Ala.Civ.App.1997) (a case analogous on this issue to the case now before us); Levesque v. Regional Med. Ctr. Bd., 612 So.2d 445, 448-49 (Ala.1993); Brooks v. Goldhammer, 608 So.2d 394 (Ala.1992). Therefore, such damage would not supply the damage element of a tort action and thus would not start the running of the statutory period for filing suit. Grabert, 571 So.2d at 294.

Proximate causation in a medical-malpractice action can be proved only by expert testimony. University of Alabama Health Servs. Found, v. Bush, 638 So.2d 794, 802 (Ala.1994). The record considered by the trial court in the case now before us contained no expert testimony proving proximate causation.

The plaintiff filed suit in the case now before us on December 5, 2002. Therefore, unless the complaint shows on its face, or the record before the trial judge established without genuine dispute, that at least some damage proximately resulted from the alleged act or omission before December 5, 2000, no judgment was or is due either defendant. Grabert, supra; Payton, supra; Hollis, 885 So.2d at 143-44; Wal-Mart Stores v. Hepp, 882 So.2d 329, 331 (Ala.2003); see Ex parte Helms, 873 So.2d 1139, 1143 (Ala.2003).

The plaintiffs complaint did not allege that any damage resulted proximately on the December 1, 2000 date of the alleged act or omission, or on December 2, December 3, or December 4, 2000, the only dates more than two years before the plaintiff filed suit on December 5, 2002. In the second paragraph numbered 4 in the complaint, the plaintiff did allege abundant damage without any dates. For aught that appears in the complaint and the record considered by the trial court, this damage did not accrue until December 5, 2000 or thereafter, less than two years before the plaintiff filed suit.

The defendants contend and the main opinion in effect holds that the complaint on its face shows or the record before the trial court established without genuine dispute that, before December 5, 2000, at least some damage proximately resulted to the plaintiff from Dr. Tobiassen’s failure to diagnose the plaintiffs stroke. However, the complaint does not show on its face and the record did not establish that, but for Dr. Tobiassen’s failure to diagnose the plaintiffs stroke, the plaintiff would have avoided some subsequent damage. Axiomatically, the damage suffered by the plaintiff before Dr. Tobiassen’s failure to diagnose did not result proximately from it. The complaint does not show, the record did not establish, the trial court could not assume, and this Court cannot assume that, but for Dr. Tobiassen’s failure to diagnose stroke, he or some other medical provider could have stabilized the plaintiffs condition, improved it, prevented another stroke, or prevented further damage before December 5, 2000.

To the extent that Grabert, supra, the crucial authority for the main opinion, is valid law at all, Grabert is distinguishable from the case before us in that the Grabert Court assumed (without revealing how it assumed) that, but for the defendant doctor’s failure to find the plaintiffs hernia, the doctor could have “remedied] that condition,” 571 So.2d at 294. The record for the defendants’ motions in the case now before us contains no evidence that the plaintiffs condition was remediable at the time of Dr. Tobiassen’s failure to diagnose stroke.

Therefore, in the case before us, the complaint does not show on its face and the record did not establish without dispute that, before December 5, 2000, any damage whatsoever proximately resulted to the plaintiff from Dr. Tobiassen’s failure to diagnose. See Sweeney v. Purvis, 665 So.2d 926, 932 (Ala.1995)(relying in part on the definition of proximate cause, including the element that “without [the negligence, the injury] would not have occurred”). Therefore, the two-year statute of limitations did not and does not bar the plaintiffs action.

The main opinion, in ultimate effect, holds that a physician’s negligent failure to diagnose a stroke necessarily, as a matter of law, entails proximately caused damage and thereby constitutes a complete cause of action for medical malpractice, which will start the running of the plaintiffs time to file suit. But suppose the shoe were on the other foot.

Suppose the medical facts were all the same. Suppose, though, the plaintiff had filed suit within two years after the defendants’ act or omission. Suppose the defendants challenged, not the timeliness of the civil action, but the sufficiency of the evidence of proximately caused damage, and the plaintiff submitted sufficient evidence that the defendants had negligently failed to diagnose the plaintiffs stroke. With no more proof of proximately caused damage than the main opinion reveals, would this Court hold that the plaintiff had sufficiently proved proximately caused damage and thus had proved a complete prima facie case of medical malpractice?

Suppose such a case comes to this Court in the future. Will this Court steadfastly follow today’s decision and recognize a pri-ma facie case of medical malpractice proved by the plaintiff?

I could predict. See Bobo, 706 So.2d at 766:

“In any event, we note that Bobo failed to present any substantial evidence on the issue of proximate causation. In other words, Bobo did not offer any evidence showing that Dr. Bryant’s failure to diagnose her fracture proximately caused her legs to become ‘crooked’ or ‘unsymmetrical.’ ‘To prove causation in [her] medical malpractice case, [Bobo] must prove, through expert medical testimony, that the alleged negligence probably caused, rather than only possibly caused, [her] injury.’ University of Alabama Health Services v. Bush, 638 So.2d 794, 802 (Ala.1994). As noted previously, Bobo failed to produce expert medical testimony.
“Because Bobo failed to present any substantial evidence to establish the standard of care applicable to Dr. Bryant, as well as any evidence to establish proximate causation, we find that the trial court did not err in granting Dr. Bryant’s summary judgment motion.”

(Alterations original; emphasis added.) But only time will tell. In the meanwhile, I must respectfully dissent. 
      
      . Dr. Tobiassen did not treat Sawyer after December 1, 2000.
     
      
      . In addition, Thomas Hospital included with its motion to reconsider an affidavit by Sawyer, in which Sawyer states that he was released from the hospital on December 1, 2000, "with no treatment for the stroke.”
     
      
      . The two-year statute of limitations expired on December 1, 2002, which was a Sunday; therefore, Sawyer had until Monday, December 2 to file his complaint. See Rule 6, Ala. R. Civ. P.
     