STATUTE OF LIMITATIONS - MCGATHEY V. BROOKWOOD HEALTH SERVICES, INC.
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By
Cunningham Bounds LLC
McGathey v. Brookwood Health Services, Inc., [Ms. 1110760, Dec. 13, 2013] ___ So. 3d ___ (Ala. 2013). Application
for rehearing overruled. In its August 2, 2013, opinion, the Supreme Court
upheld a summary judgment on the ground that the plaintiff did not exercise
due diligence in substituting the two individual defendants, Rawlings
and Nunnally, for fictitiously named defendants. The medical records had
the names of these two as being among the personnel in the operating room,
but plaintiff asserted that she had no information that they were the
persons responsible for injuring her until she took their depositions,
which she was not able to take until after the two-year period of limitations
expired. The Supreme Court rejected this argument: "McGathey's
argument mistakenly focuses on when she learned of the specific details
of Rawlings's and Nunnally's role in causing her injury rather
than on when she knew the identities of those potential parties. Our cases
emphasize that Rule 9(h) concerns the identity of a party, not the cause
of action against a party." Counsel from our firm and others filed an
amicus curiae
brief on behalf of the Alabama Association for Justice arguing that the
August 2 opinion changed the law of fictitious-party practice. Our brief
discussed cases that we contended were inconsistent with the above-quoted
holding in
McGathey. Nevertheless, the Supreme Court overruled the application for rehearing
without explanation.
