Prior v. Cancer Surgery of Mobile, PC
Prior v. Cancer Surgery of Mobile, PC
Opinion
Deborah Ann Prior appeals from an order dismissing her second amended complaint in a medical-malpractice case. Because we hold that her second amended complaint does not relate back to her original complaint, as amended, and was thus barred by the applicable statute of limitations, we affirm.
At the time Prior sought medical care from Cancer Surgery, Bradley Scott Davidson, M.D., and Gaylord T. Walker, M.D., were employed there. Prior was Dr. Davidson's patient, and Dr. Davidson monitored Prior and performed postoperative treatment during Prior's hospital stay in August 1999. Over the weekend of August 20 to August 22, 1999, Dr. Davidson was unavailable, and Dr. Walker was *Page 1094 caring for Dr. Davidson's patients, including Prior. Prior died in the hospital on August 31, 1999, allegedly as a result of substandard medical care.
On August 8, 2001, Prior's wife, Deborah Ann Prior, sued Dr. Davidson and Cancel' Surgery, among others, alleging medical malpractice and wrongful death. Mrs. Prior also asserted claims of vicarious liability for Prior's death. Dr. Davidson and Cancer Surgery moved to dismiss Mrs. Prior's complaint or, in the alternative, for a more definite statement. To "more fully comply with the pleading requirements of §
"Defendant Davidson failed to perform a proper espohagojejunostomy [sic]. He failed to properly test the adequacy of the espohageal [sic] anastomosis. He failed to promptly and properly diagnose leakage at the espohagojejunostomy [sic] and failed to promptly perform the necessary and indicated diagnostic testing to assess for perforation and/or leakage. He failed to promptly perform the necessary and indicated exploratory laparotomy. He failed to promptly and properly institute IV antibiotics. He abandoned the patient and failed to appreciate the patient's signs, symptoms, and complaints. Defendant Davidson further ignored clinical symptoms of gastrointestinal leak. He caused significant delay in the treatment of the gastrointestinal leak."
On August 13, 2002, Mrs. Prior filed a second amended complaint. In this second amended complaint, Mrs. Prior sought to hold Cancer Surgery vicariously liable for the conduct of Dr. Walker as well as for that of Dr. Davidson. She alleged that Dr. Walker
"failed to appropriately supervise the resident/medical student on duty on August 22, 1999; failed to diagnose the anastamotic leak and/or failed to appreciate the danger posed by the leak on August 22, 1999; failed to order the appropriate diagnostic studies to determine the severity of the leak and failed to intervene such that surgery could be done on August 22, 1999."
Cancer Surgery moved to dismiss the second amended complaint, arguing that the claims against Cancer Surgery based on Dr. Walker's conduct failed to "relate back" to the date of the original pleading under Rule 15(c)(2), Ala. R. Civ. P. Thus, it argued, the second amended complaint was time-barred because the two-year statute of limitations for claims against Dr. Walker had expired. The trial court granted the motion and certified it as a final appealable order pursuant to Rule 54(b), Ala. R. Civ. P. Mrs. Prior now appeals the trial court's dismissal of her second amended complaint. We agree with the trial court that Mrs. Prior's second amended complaint does not relate back to her original complaint; we therefore affirm.
An amended complaint relates back to the original complaint under Rule 15(c)(2), Ala. R. Civ. P., when "`the same substantial facts are pleaded merely in a different form.'"Ex parte Johnston-Tombigbee Furniture,
"failed to properly test the adequacy of the espohageal [sic] anastomosis. He failed to promptly and properly diagnose leakage at the espohagojejunostomy [sic] and failed to promptly perform the necessary and indicated diagnostic testing to assess for perforation and/or leakage. He failed to promptly perform the necessary and indicated exploratory laparotomy. He failed to promptly and properly institute IV antibiotics. He abandoned the patient and failed to appreciate *Page 1096 the patient's signs, symptoms and complaints. Defendant further ignored clinical symptoms of gastrointestinal leak[; and] caused a significant delay in treatment of the gastrointestinal leak."
However, the misconduct Mrs. Prior alleges Dr. Walker engaged in is different. She alleges that Dr. Walker
"failed to appropriately supervise the resident/medical student on duty on August 22, 1999; failed to diagnose the anastamotic leak and/or failed to appreciate the danger posed by the leak on August 22, 1999; failed to order the appropriate diagnostic studies to determine the severity of the leak and failed to intervene such that surgery could be done on August 22, 1999."
The "resident/medical student" Dr. Walker allegedly failed to appropriately supervise had never previously been mentioned in the original complaint or in the first amended complaint. Nor had Mrs. Prior alleged a failure by Dr. Walker or Dr. Davidson to "order the appropriate diagnostic studies" or to "intervene such that surgery could be done on August 22, 1999."
This Court addressed an analogous situation in GeorgiaCasualty Surety Co. v. White,
Mrs. Prior relies, in part, on Callens v. JeffersonCounty Nursing Home,
Sonnier v. Talley,
In the present case, Mrs. Prior seeks to amend her complaint to add new facts and to add the claim that Cancer Surgery is vicariously liable for the actions of a different doctor on a different day from those actions that formed the basis of the claims asserted in the original complaint and the first amended complaint. She is not entitled to add a separate claim of vicarious liability against Cancer Surgery for the acts of a new party by the expedient of an amendment to the complaint under Rule 15(c)(2).2 We hold that the allegations in the second amended complaint do not relate back to the original complaint, as amended. See Rule 15(c)(2). Because we hold that the second amended complaint does not relate back,3 we need *Page 1098 not inquire whether Cancer Surgery would be prejudiced by allowing the amendment. Therefore, we affirm the trial court's dismissal of Mrs. Prior's second amended complaint.
AFFIRMED.
NABERS, C.J., and HARWOOD, STUART, and BOLIN, JJ., concur.
"(c) Relation back of amendments. An amendment of a pleading relates back to the date of the original pleading when
". . . .
"(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, except as may be otherwise provided in Rule 13(c) for counter-claims maturing or acquired after pleading. . . ."
We also note that Mrs. Prior unduly delayed filing the second amended complaint. Although she was aware at least as early as September 2001 that Dr. Walker helped treat Prior, she did not file the second amended complaint alleging Dr. Walker's negligence until August 2002. "`[U]ndue delay in filing an amendment [to a complaint], when it could have been filed earlier based on the information available or discoverable, is in itself ground for denying an amendment.'" Rector v.Better Houses, Inc.,
Reference
- Full Case Name
- Deborah Ann Prior, as Personal Representative of the Estate of Stephen Albert Prior v. Cancer Surgery of Mobile, P.C.
- Cited By
- 9 cases
- Status
- Published