Kentucky Appellate Court Affirms Dismissal Of Medical Malpractice Case That Named Wrong Defendant

162017_132140396847214_292624_nIn its unpublished opinion rendered on March 3, 2017, the  Commonwealth of Kentucky Court of Appeals (“Appellate Court”) affirmed the dismissal of the plaintiff’s medical malpractice case, finding that the plaintiff could not meet the requirement of mistaken identity of the proper defendant to support relation back of the amended complaint.

The Underlying Facts

In 2013, the plaintiff underwent surgery at the University of Kentucky, Markey Cancer Center (“UK”) to remove portions of his liver, small intestines, and colon. After returning home, Three Rivers Home Care (“Home Care”) sent nurses three times per week to care for the plaintiff’s surgical wound. Home Care nurses utilized a wound vac and black colored sponges.

On one such visit, the plaintiff stated that he remembered a home health nurse placing two sponges into the wound; however, during the next visit, he believed the Home Care nurse only removed one sponge. The plaintiff told the nurse that he thought two sponges were placed in the wound at the previous visit, but the nurse assured him no other sponges were in the wound. The June 5, 2013 visit was the last date that Home Care provided wound care to the plaintiff.

On July 26, 2013, staff at the King’s Daughter Medical Center discovered a black sponge in the plaintiff’s wound but could not remove it without surgery. On July 29, 2013, the sponge was removed by surgical procedure at UK. On June 13, 2014, the plaintiff filed a medical negligence action against the Hospital of Louisa, Inc., d/b/a Three Rivers Medical Center (“Medical Center”).

The Medical Center responded to the plaintiff’s medical malpractice lawsuit by specifically denying that it “placed” the plaintiff into the care of Three Rivers Home Care; by stating that it does not own or operate Three Rivers Home Care; by specifically denying that it was the administrator and/or entity bearing responsibility for the management of Three Rivers Home Care; and, by alleging that the plaintiff’s injuries and damages, if any, were caused in whole or in part, by the negligent or wrongful acts and/or omissions of other individuals or entities but for which they would not have occurred and for which it is not responsible or liable.

On June 25, 2015 (almost two years after the occurrence of the alleged negligence), the plaintiff filed a motion for leave to file an amended complaint “in order to correct a mistake as to the identity of the proper Defendant,” alleging that the proper defendant was “Louisa Home Care Services, LLC, doing business as Three Rivers Home Care.” The plaintiff stated that he made “a mistake in corporate identity” and sought to have the amended complaint relate back in time to the filing of the original complaint under Kentucky Rules of Civil Procedure (CR) 15.03, and thus be considered timely filed.

On December 21, 2015, Home Care filed a motion to dismiss the amended complaint, arguing that the action was untimely filed. Home Care maintained that the original complaint was filed outside the one-year limitation period, and that even if the original complaint was timely filed, the amended complaint did not relate back in time to the filing of the original complaint under CR 15.03(2)(b). By Order entered January 12, 2016, the circuit court granted Home Care’s motion and dismissed the amended complaint against Home Care. The plaintiff appealed.

The Appellate Court stated that the one year statute of limitations is applicable to this case for the plaintiff to have asserted a negligence claim against Home Care (Kentucky Revised Statutes (KRS) 413.140), and it agreed that the plaintiff did not discover that the sponge remained in his body until July 26, 2013, when it was determined through a procedure at King’s Daughter Medical Center that the sponge was still intact in the plaintiff’s abdomen. Thus, the one year statute of limitations for a claim against Home Care began to run on July 26, 2013.

The Appellate Court stated that the original complaint filed by the plaintiff against the Medical Center was filed on June 13, 2014, which was clearly within the one year statute of limitations. However, the Medical Center was the wrong defendant. On June 25, 2015, the plaintiff filed a motion to amend his complaint, asserting for the first time his negligence claim against Home Care and alleging a ““mistake in corporate identity” to support the relation back of the amendment pursuant to CR 15.03.

The Appellate Court stated that it did not believe a mistake of corporate identity occurred in this case. The language from the plaintiff’s medical malpractice complaint unequivocally indicates that the plaintiff intended to sue the Medical Center under a mistaken legal belief or theory, but not mistaken identity, that Home Care was affiliated with the Medical Center. The Medical Center is a corporation and Home Care is a limited liability company (LLC). The fact that they have the same managers or directors does not mean they are the same entity. The complaint explicitly recognizes that Home Care is a separate legal entity, alleging that Home Care’s agents or employees committed tortious acts against the plaintiff. And, the documents relied upon by the plaintiff from the Secretary of State to establish mistaken corporate identity, were available to counsel in June 2014. These records clearly and succinctly reflect that the Medical Center was a Kentucky Corporation and Home Care was a Delaware LLC doing business in Kentucky under the assumed name of “Three Rivers Home Care” in 2014.

The Appellate Court stated that the plaintiff could have protected his timely claim against Home Care in June 2014 by simply naming Home Care as a co-defendant, which would have survived the Medical Center’s dismissal. In its answer filed on July 2, 2014, the Medical Center put the plaintiff on notice it was not legally affiliated with or responsible for the management of Home Care. The plaintiff could have still asserted a timely claim against Home Care within the one-year statute of limitation, July 26, 2014, by either seeking to amend the complaint under CR 15.01 or by simply filing a new action against Home Care before the limitation period ran. The plaintiff did neither and thus the Appellate Court held that the circuit court was correct in ruling that the claims were barred by the one year limitation set out in KRS 413.140.

Source Chaffin v. Louisa Home Care Services, LLC, d/b/a Three Rivers Home Care, 2016-CA-000109.

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This entry was posted on Tuesday, April 4th, 2017 at 5:21 am. Both comments and pings are currently closed.

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