Mo. SC rules defendants added too late to wrongful death case

Jessica M. Karmasek Jul. 28, 2011, 8:14am


JEFFERSON CITY, Mo. (Legal Newsline) - The Missouri Supreme Court ruled last week that the state's statute of limitations bars a lawsuit for wrongful death against a group of physicians.

On the last day of the three-year limitations period, Eric Katz filed a lawsuit alleging medical malpractice in the death of his mother, Alverna Katz. The lawsuit included as named defendants John Doe, Jane Doe and Washington University and/or Washington University Medical Center.

After discovery, Eric Katz amended the petition by adding the names of Drs. Neal W. Holzum, Scott L. Landry, David Poggemeier and BC Emergency Physicians LLP, and dropping John Doe, Jane Doe and Washington University and/or Washington University Medical Center.

At the time of the amendment the statute of limitations had expired. Only one defendant named within the limitations period -- Barnes-Jewish St. Peters Hospital Inc. d/b/a Barnes-Jewish St. Peters Hospital -- remains in the case.

The question for the state's high court was whether the amendment adding these physicians and their employer after the statute of limitations had run "relates back" to the timely filing date of the original petition, or whether the claim against these new defendants is barred by the three-year statute of limitations applicable in this case.

The statute requires that an action be "commenced" within the three-year limitations period. But the statute does not say when an action is "commenced," and that question can be answered only by reference to the Court's rules and case law.

The newly added defendants moved to dismiss on the ground that the action was not commenced against them within the limitations period; their motion asserted that the "Doe" and Washington University defendants named in the original petition did not meet the requirement in the common law "misnomer" principle. Therefore, they say, the amendment adding them did not "relate back" to the date of the original filing.

The circuit court overruled the motions to dismiss, and the new defendants -- Holzum, Landry, Poggemeier and BC Emergency Physicians LLP -- filed petitions for writs of prohibition.

The Court issued its preliminary writs of prohibition. Because both writ proceedings arise from the same underlying lawsuit and raise the same issue, they were consolidated for decision. The preliminary writs also were made permanent.

Justice Michael A. Wolff, who authored the Court's July 19 opinion, said Eric Katz has not alleged or shown any evidence that Holzum, Landry, Poggemeier and BC Emergency Physicians received notice of this lawsuit "promptly" after it was filed, as required.

"Even if these actual defendants had been promptly served with process after the filing of the lawsuit, the petition as it was filed on the last day of the limitations period does not identify these defendants. Specifically, the initial petition does not identify or describe who these health care providers named as 'Doe' defendants are, or in what setting in the hospital they treated Mrs. Katz, for example, the emergency room, the operating room, or whatever," Wolff wrote.

"The only thing these actual defendants could have learned from the initial petition is that the defendants were 'providers of medical services to the consuming public, who at all times relevant to this action was engaged in providing medical services to the consuming public, including Decedent for a fee' and that 'Decedent presented herself to Defendants and through their negligent treatment died...'"

The justice continued, "This vague description would hardly suffice for an actual defendant to discern that, in the words of subsection (2) of the rule he 'knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.'"

The common law "misnomer" principle requires the filing of the petition "within the period provided by law for commencing the action against the party."

Katz did so but without adequately describing the actual defendants, the Court said.

The Court said the service of process also must be done promptly, and Katz did not do so.

"Because Katz failed to describe these 'Doe' defendants in his first pleading, the actual defendants could not have been 'promptly' served after the suit was filed, even if they somehow had received the initial petition," the Court wrote. "The amended petition does not relate back to the filing of the initial petition."

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