In Ex parte Nail, No. 1110742, on June 3, 2005, Dulin’s treacheostomy
tube became dislodged during a bath administered by hospital personnel, causing
him to suffer brain damage due to oxygen deprivation. A month later, his wife
obtained the hospital records on which the names of individuals on the “Code
Team” were abbreviated, misspelled and/or illegible.
On May 2, 2007, a personal injury/medical negligence
cause of action was brought against the hospital and 17 fictitiously named
defendants. Accompanying the complaint were discovery requests asking for
the “names of all individuals who were assisting or attending to [Dulin] at the
time [his] trachemostomy tube became dislodged.” On September 10, 2007,
the hospital responded with the names Alanna Nail, Paul Watson and Gennie
Farragher. On October 26, 2007, the complaint was amended to substitute
these three for fictitiously named defendants. When the trial court
denied the three’s motion to dismiss on statute-of-limitations grounds, the
three filed a mandamus petition. The Supreme Court denied the
petition.
The Supreme Court held that, under the circumstances, the
Dulin’s exercised ordinary due diligence and were excused from knowing or
should have known the three’s identity when the original complaint was
filed. The Supreme Court emphasized that the Dulins had filed formal
discovery requests with the original complaint, as well as, the problems with reading
names on the records.
The “value” of this opinion should be considered in light
of earlier opinions that suggest that a prospective plaintiff should undertake
some informal investigation to determine who should be defendants and/or
instituted pre-filing formal discovery. Additionally, this was a
five-justice opinion with Woodall writing the opinion. The full court,
with more “conservative” justices, might not be so understanding.
