EMAIL TO A FRIEND COMMENT

 

Latex Allergy Claim Barred; No Intent for Immediate Service of Complaint


A woman with a latex allergy underwent surgery. She suffered from a severe allergic reaction.

 

One day shy of two years after she underwent surgery, the woman filed a complaint in the Montgomery Circuit Court against the surgeon, his practice group, and the surgical facility for medical malpractice. The complaint alleged that the surgeon, his practice group, and the surgical facility deviated from the acceptable standard of medical care when, despite being aware of the fact that she was allergic to latex, they failed to provide a latex-free environment during both her surgery and her recovery and that, as a result, she suffered a severe allergic reaction that caused serious injuries.

 

The complaint was signed by an attorney who was not barred in the state where the complaint was filed with a note stating “motion pro hac vice to follow.” The name or signature of an attorney licensed to practice law in the state did not appear on the complaint. The complaint was filed electronically by an attorney licensed to practice law in the state. The complaint did not include the addresses of the surgeon, his practice group, and the surgical facility or any instructions to the circuit clerk for service of process.

 

About 55 days later the out-of-state attorney filed a verified application for admission to practice to the state bar. In his application he identified the attorney who electronically filed the complaint as local counsel of record associated with the out-of-state attorney.

 

About 69 days after the complaint was filed, the surgeon, his practice group, and the surgical facility were served the complaint.

 

Ten days after they were served, the surgeon, his practice group, and the surgical facility filed a motion to strike the complaint and a motion to dismiss. The motion argued that the complaint was signed and filed by an out-of-state attorney who had not been admitted to appear pro hac vice.

 

The trial court denied the motion.

 

The Supreme Court of Alabama reversed and remanded. The court held that the action was barred by the applicable two-year statute of limitations because, at the time the complaint was filed, the woman lacked the bona fide intent to have the complaint immediately served upon the surgeon, his practice group, and the surgical facility.

 

The action was barred by the applicable two-year statute of limitations because, at the time the complaint was filed, the woman lacked the bona fide intent to have the complaint immediately served upon the surgeon, his practice group, and the surgical facility. The woman was not required to provide the address of each defendant to the circuit clerk at the time she filed her complaint in order to effectuate service by process server. However, because she elected to use a process server, she undertook the duty to obtain a process server. The court found no evidence in the record indicating that the woman made any effort to obtain a process server at the time she filed her complaint, or any evidence indicating at what point, if ever, the woman made an effort to obtain a process server. Whether the woman effectuated service within the time limit for service is an entirely separate inquiry from whether she timely commenced her action for statute-of-limitations purposes. The court found no evidence indicating that the surgeon’s, his practice group’s, and the surgical facility’s addresses were unknown to the woman, the out-of-state attorney, or local attorney at the time the complaint was filed. The only evidence explaining the delay in service was the admission from the out-of-state attorney that he decided to delay serving the complaint until after he had filed his application for admission pro hac vice. The action was not commenced for statute-of-limitations purposes before the two-year statute of limitations expired, and, therefore, the action was time-barred.

 

The Supreme Court of Alabama affirmed the trial court’s grant of summary judgment to the surgeon, his practice group, and the surgical facility due to the woman’s lack of bona fide intent to have the complaint immediately served upon the surgeon, his practice group, and the surgical facility.

 

See: ENT Associates of Alabama, P.A. v. Hoke, 2016 WL 4585742 (Ala., September 2, 2016) (not designated for publication). 

 

 

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