American Journal of Trial Advocacy

Photo Credit: Phil Federico, How to Proceed in a Medical Malpractice Suit in Maryland, Brockstedt, Mandalas, Federico, June 4, 2025, https://www.mdmalpracticelaw.com/legal-blog/how-to-proceed-with-medical-malpractice-suit-md/

Authored by: James David Greene III

The Alabama Medical Liability Act (“AMLA”) requires plaintiffs to amend their complaint “timely upon ascertainment of new or different acts or omissions upon which his claim is based; provided, however, that any such amendment must be made at least 90 days before trial.”[1] In Ex Parte Taylor, the Alabama Supreme Court addressed a defendant’s motion to strike on the grounds that the plaintiff’s complaint was not amended “timely” in accordance with the AMLA.[2] The Court’s holding places plaintiffs on notice to amend their complaint as quickly as possible so they do not endanger their ability to plead newly discovered facts.

On August 24, 2016, Dr. Jeff Segrest performed a vein ablation on Sandra Phillips’s right leg.[3] Mrs. Phillips developed an infection and was referred to Dr. Steven Taylor, who performed three irrigation and debridement (“I & D”) procedures on her.[4] These procedures took place on October 26, 2016, December 1, 2016, and January 30, 2017.[5] On March 28, 2017, Dr. Taylor found and removed a 4” x 4” piece of gauze from Mrs. Phillips’s wound, which had been left in her wound on a previous, unknown date.[6] Mrs. Phillips filed suit against Dr. Taylor in Shelby County Circuit Court on July 9, 2018, alleging malpractice under the AMLA.[7]

Mrs. Phillips’s complaint alleged that Dr. Taylor, not Dr. Segrest, performed the vein ablation on September 21, 2016, not August 24, 2016.[8] Further, it was alleged that a “sponge” was left inside Mrs. Phillips during the vein ablation and was later found by a nurse during an appointment to remove a wound vacuum.[9] The failure to remove the sponge was said to have been the cause of “physical and emotional trauma” to Mrs. Phillips that included “chronic and prolonged medical care . . . including . . . fever and infection.”[10] Dr. Taylor answered the complaint, denying all material allegations.[11]

In February of 2020, Dr. Taylor filed a motion for summary judgment in which he argued that no such vein ablation took place on September 21, 2016, and that no “sponge” was found in Mrs. Phillips.[12] He included his own interrogatory and requests for admission answers, which repeatedly stated that the claimed “incident made the basis of this litigation,” the September 21, 2016 vein ablation, did not occur to his knowledge.[13] Instead, Dr. Taylor admitted to finding a 4” x 4” piece of gauze on March 28, 2017, which he thought was left from a wound dressing, not a surgical procedure.[14] On March 26, 2020, Mrs. Phillips filed a motion asking for an extension to conduct more discovery before summary judgment was ruled on.[15] In this motion, she contended that Dr. Taylor’s deposition had still not been taken and was the result of the defense not timely producing necessary documents.[16] In her motion, Mrs. Phillips continued to reference a “vein ablation procedure on her right leg” on September 21, 2016.[17]

In response to Mrs. Phillips’s motion, Dr. Taylor argued that the documents Mrs. Phillips was referencing were her own medical records that she and her counsel had access to “before this lawsuit was filed.”[18] The COVID-19 pandemic pushed the summary judgment hearing to April 19, 2022. In this hearing, Mrs. Phillips’s counsel admitted that the medical records showed Dr. Taylor did not perform a vein ablation surgery on Mrs. Phillips, but argued there was “substantial evidence” that gauze, not a sponge, was left inside her during Dr. Taylor’s post-operative care.[19] Dr. Taylor’s counsel responded by saying that Mrs. Phillips’ counsel was “talking about a lawsuit that does not exist.”[20] He argued that because the complaint alleged in both of its Counts under the AMLA that the September 21, 2016, surgery was the basis for the lawsuit, it was not pleaded sufficiently under the AMLA’s pleading requirement.[21] The circuit court denied Dr. Taylor’s motion for summary judgment; however, Mrs. Phillips did not amend her complaint and took Dr. Taylor’s deposition in June of 2023.[22]

On September 23, 2024, Dr. Taylor renewed his motion for summary judgment, arguing that the undisputed facts still showed that Dr. Taylor had not performed any surgery on September 21, 2016, on Mrs. Phillips, nor was any sponge ever found inside her.[23] On November 12, 2024, the circuit court held another hearing on the motion, where Mrs. Phillips’s counsel admitted to still not having amended the complaint to address the issues of dates and procedures done by Dr. Taylor.[24] Her counsel argued this was a simple “scriveners’ error” at the outset of the case, and Dr. Taylor knew exactly what he was defending the entire time.[25] The circuit court denied Dr. Taylor’s motion for summary judgment and allowed Mrs. Phillips fourteen days “to correct the date in the Complaint based on a clerical error of counsel.”[26]

On November 26, 2024, over 6 years after filing suit, Mrs. Phillips filed her first amended complaint, which corrected the alleged September 21 surgery to the correct date of the October 26th procedure done by Dr. Taylor.[27] Dr. Taylor filed a motion to “dismiss and or strike” Mrs. Phillips’s first amended complaint, arguing that under the AMLA and Rule 15 of the Alabama Rules of Civil Procedure, it caused undue delay.[28] Mrs. Phillips filed a response arguing Dr. Taylor could not show “actual prejudice” or “undue delay.”[29] The motion to dismiss and or strike was denied by the circuit court, and Dr. Taylor petitioned for a writ of mandamus, asking the Alabama Supreme Court to grant his motion to strike Mrs. Phillips’s first amended complaint.[30]

The Court found that Mrs. Phillips’s amendment was not timely filed as a result of her failure to comply with the AMLA pleading standards, nor did good cause exist to grant her leave to amend.[31] The court cited directly to the AMLA, which states a plaintiff has a duty to “amend his complaint timely upon ascertainment of new or different acts or omissions upon which his claim is based.”[32] It was also noted that the statute provides defendants with the ability to further protect their rights by limiting discovery to only acts or omissions that are pleaded with particularity.[33] The Court was not convinced at all by the “scriveners’ error” argument put forward by Mrs. Phillips and instead found that she clearly failed to satisfy her pleading duties under the AMLA.[34] The discussion then shifted to whether the circuit court was correct in granting leave to Mrs. Phillips under Rule 15(a). Under Rule 15(a), amendments “may be disallowed by the court . . . upon a motion to strike from an adverse party,” specifically when allowing an amendment would create actual prejudice or undue delay.[35] Undue delay was the focus of the Court’s further discussion.

The Court noted that well-established Alabama law held that one example of undue delay is “filing an amendment when the party has had sufficient opportunity to discover the facts necessary to file the amendment earlier.”[36] This would be sufficient grounds for a trial court to deny an amendment.[37] Finally, the Court held that showing prejudice was not necessary when the party attempting to amend showed “truly inordinate and unexplained delay,” and ultimately that Mrs. Phillips had exhibited that kind of delay, along with undue delay regarding Rule 15.[38] The Court granted the petition and issued the writ requiring the circuit court to grant Dr. Taylor’s motion to strike.[39]

The implications of this ruling, while not earth-shattering, are significant for plaintiffs in medical malpractice actions in Alabama. Even though this case is a bit extreme with the time elapsed between Mrs. Phillips’s knowledge of the error and her first amended complaint, it still creates a “no man’s land” for plaintiffs. The court declined to establish a bright-line rule regarding what exactly “timely” would be; they instead made clear this would be a fact-specific application.[40] The ruling will certainly result in plaintiffs taking care to first plead the facts as accurately as possible, but also to amend their complaint as soon as possible when new facts come to light.

Plaintiffs across the state will now ask: How long is too long to amend when a new fact comes out? Is three months of knowing a fact too long? Two months? One month? The other consideration plaintiffs must now contemplate is the likelihood of a flood of motions to strike pleadings based on this ruling from the Court. It will surely take at least a few years for the Court to further clarify its holding here and create a clearer picture. Regardless, the best rule for medical malpractice plaintiffs to live by for now? Plead ‘em if you got ‘em.

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[1] Ala. Code § 6-5-551 et seq. (1975).

[2]  Ex Parte Taylor, SC 2025-0164, 2025 WL 3120230 at *1 (Ala. Nov. 7, 2025).

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id. at 2.

[8] Taylor, 2025 WL 3120230 at *2.

[9] Id.

[10] Id.

[11] Id.

[12] Id. at *3.

[13] Id.

[14] Taylor, 2025 WL 3120230 at *4.

[15] Id. at *7.

[16] Id.

[17] Id.

[18] Id. at *8.

[19] Id.

[20] Taylor, 2025 WL 3120230 at *9.

[21] Id.

[22] Id. at *11.

[23] Id.

[24] Id. at *14.

[25] Id.

[26] Taylor, 2025 WL 3120230 at *15.

[27] Id.

[28] Id.

[29] Id. at *16.

[30] Id. at *16-17.

[31] See id. at *17 (“Nevertheless, as hereinafter discussed and based on the circumstances before us, we cannot conclude that Phillips’s amendment was timely filed in light of her failure to satisfy her obligations under § 6-5-551 or that good cause would have existed to grant Phillips leave to amend.”).

[32] Taylor, 2025 WL 3120230 at *18.

[33] See id. (“And, in § 6-5-551 the legislature has granted a defendant a right to protect his or her interest, for purposes of discovery or for trial, by limiting a plaintiff to the pleaded acts or omissions rather than “any other act or omission.”); Ex Parte Huntsville Emergency Med. Serv., Inc., 372 So. 3d 538, 546 (Ala. 2022) (“Section 6-5-551 permits discovery related to acts or omissions specifically alleged in the complaint, but it prohibits discovery ‘with regard to any other act or omission’ not properly alleged.”).

[34] See id. (“We will not be distracted by any belated ‘scrivener’s error’ excuse.”).

[35] Id.; R. 15 Ala. R. Civ. P.

[36] Id.; See Stallings v. Angelica Uniform Co., 388 So. 2d 942, 947 (Ala. 1980) (“An unexplained undue delay in filing an amendment when the party has had sufficient opportunity to discover the facts necessary to file the amendment earlier is also sufficient grounds upon which to deny the amendment.”).

[37] Id.

[38] See Taylor, 2025 WL 3120230 at *19 (“Because the materials before us clearly establish ‘[t]ruly inordinate and unexplained delay’ by Phillips regarding the filing of her first amended complaint, i.e., undue delay for purposes of Rule 15(a), especially in light of Dr. Taylor’s timely and repeated assertion of the requirements of § 6-5-551 we conclude that the circuit court exceeded its discretion by denying Dr. Taylor’s motion to strike.”)

[39] Id. (“The circuit court is directed to vacate its order granting Phillips leave to amend her complaint and to grant the motion to strike Phillips’s first amended complaint.”).

[40]  See id. (“In addressing the issue of undue delay in relation to § 6-5-551, we wish to be clear. The issue is fact specific.”).