Powe v. Byrd, et al.
| Docket Number: | 2003-CA-00021-SCT Linked Case(s): 2003-CA-00021-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 11-18-2004 Opinion Author: Randolph, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Medical malpractice - Failure to timely serve process - Good cause - M.R.C.P. 4(h) - M.R.C.P. 11 - Statute of limitations - Section 15-1-36(1) - Discovery rule - Savings statute - Section 15-1-69 Judge(s) Concurring: Smith, C.J., Cobb, P.J., Easley, Carlson and Dickinson, JJ. Non Participating Judge(s): Waller, P.J., Diaz and Graves, JJ. Procedural History: Dismissal Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 09-27-2002 Appealed from: Clarke County Circuit Court Judge: Larry Eugene Roberts Disposition: Dismissed the complaint as barred by the statute of limitations. Case Number: 2002-63(R) |
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| Consolidated: Consolidated with 2002-CA-00834-SCT Nancy Powe, Individually and on Behalf of the Wrongful Death Beneficiaries of Cecil Powe, Deceased v. O.W. Byrd, M.D., and The Medical Group Clinic; Clarke Circuit Court; LC Case #: 2001-23R; Ruling Date: 04/01/2002; Ruling Judge: Larry Eugene Roberts | ||
| Note: | 2002-63(R) | |
| Party Name: | Attorney Name: | |||
| Appellant: | Nancy Powe, Individually and on Behalf of the Wrongful Death Beneficiaries of Cecil Powe, Deceased |
CHRISTINA CARROLL
DAVID WAYNE BARIA
MARK L. PEARSON
W. ERIC STRACENER
MARY MARVEL FYKE |
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| Appellee: | O.W. Byrd, M.D., and The Medical Group Clinic | GAYE NELL LOTT CURRIE GEORGE QUINN EVANS |
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| Topic: | Medical malpractice - Failure to timely serve process - Good cause - M.R.C.P. 4(h) - M.R.C.P. 11 - Statute of limitations - Section 15-1-36(1) - Discovery rule - Savings statute - Section 15-1-69 |
| Summary of the Facts: | Nancy Powe’s original medical malpractice complaint was dismissed for failure to timely serve the remaining defendant, The Medical Group Clinic, with a summons and complaint within the applicable 120 day time period. The day the complaint was dismissed, Powe filed a second factually similar complaint in a second lawsuit. The court dismissed that action as barred by the two-year statute of limitations. Powe appeals. |
| Summary of Opinion Analysis: | Issue 1: Good cause Service was not made upon The Medical Group Clinic until December 4, 2000, which was 3 days after the 120 day deadline required by M.R.C.P. 4(h). Powe argues that the process server was not contacted until the 120th day because of her attorney’s attempts to comply with M.R.C.P. 11 and that she did not receive an expert opinion about the merits of the case until the 120th day. However, Rule 11 does not excuse the delay in service because Powe had already filed the original complaint. To establish good cause under M.R.C.P. 4(h), the plaintiff must demonstrate at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance or the rules usually does not suffice. There is an obvious distinction between total want of service of process and a defective service of process. The defendant has no notice of the suit when there is no service; defective service at least gives the defendant notice. Here, the court did not err in ruling that Powe failed to show good cause for lack of timely service. Waiting until the last day to serve process on a defendant does not constitute good cause. Powe knew that it was of the utmost importance to have the process served on or before that day and failed to do so. Issue 2: Discovery rule Powe argues that the statute of limitations period had not ended because it was not discovered that the doctor’s negligence might have caused the deceased’s death until Powe received the expert opinion on December 1, 2000. For purposes of the discovery rule, the two-year period under section 15-1-36(1) begins to run when the patient can reasonably be held to have knowledge of the injury itself, the cause of the injury, and the causative relationship between the injury and the conduct of the medical practitioner. The deceased received treatment for gasritis and hemorrhoids for approximately two years from the Medical Group Clinic; he eventually discovered in March of 1998 that his problems were far worse than expected and that he had colon cancer. Powe’s second complaint was filed more than 4 years after the deceased was diagnosed with cancer, and approximately three and a half years after his date of death. Therefore, Powe’s argument is without merit. Issue 3: Savings statute Powe argues that dismissal based on failure/insufficiency to serve process is a matter of form under the savings clause of section 15-1-69. Powe is procedurally barred from raising this issue on appeal since there is no mention of this statute in the record. |
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