McMickens v. Waldrop
In McMickens v. Waldrop, 406 So. 2d 867 (Ala. 1981) two physicians treated LaVonne McMickens from February 10, 1975, to May 24, 1975. On March 24, 1977, LaVonne McMickens sued the two physicians, alleging medical malpractice. On October 30, 1977, LaVonne McMickens died. On August 24, 1978, on the consent of David McMickens, as administrator of LaVonne McMickens's estate, the malpractice action was dismissed. See 406 So. 2d at 868 and n.1.
On October 29, 1979, after the civil action had been dismissed, David McMickens, as administrator, filed a wrongful-death action against the two physicians. The defendants moved for a summary judgment, and the trial court granted their motion. David McMickens appealed.
The Court held that, because LaVonne McMickens had filed a personal-injury action before her death, her administrator could file a wrongful-death action within two years of her death, even though the period allowed by the medical-malpractice statute of limitations, which had run from the date of her treatment, had expired; therefore, the wrongful-death action was held timely because it was filed within two years of the death.
McMickens stands for the proposition that it is the two-year limitations period for wrongful-death actions, see 6-5-410, Ala. Code 1975, and not the medical-malpractice limitations period, that applies to wrongful-death cases alleging medical malpractice.
Under McMickens, the medical-malpractice limitations period determines whether a decedent's medical-malpractice cause of action survived his death. If the decedent had a viable medical-malpractice claim when he died, then the decedent's personal representative could, within two years after the decedent's death, bring a wrongful-death action alleging medical malpractice.