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Another Obstacle in the Path to Justice: Erwin v. Bryan and the Demise of Rule 15(D)

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As frequenters of the blogs on Injury Board likely realize, it’s not easy being a plaintiff these days. With the forces of tort reform working overtime to deny injured individuals the true measure of justice, your typical plaintiff faces a long and difficult road to recovery. From pre-filing mediation requirements in some states to damage award caps in many others, an injured party’s journey is riddled with obstacles designed to limit her chances for recovery. In this hostile environment, some might assume that the plaintiff’s last refuge is the fair and unbiased application of the rules that govern civil proceedings.

One of these rules, Ohio Civil Rule 15(D), permits a plaintiff who does not know the name of a particular defendant to identify that defendant as “John Doe” in her complaint. Once the plaintiff ascertains the identity of that defendant, she can substitute that defendant for the John Doe. It is clear that this Rule is intended to protect and preserve a plaintiff’s claim, as it creates a mechanism by which a plaintiff may file her complaint within the statute of limitations – thus preserving her claim – even if she does not know the identity of every tortfeasor responsible for her injuries.

A recent Ohio Supreme Court decision, however, has substantially weakened, if not entirely destroyed, the protection previously provided by Rule 15(D). After the Court’s decision in Erwin v. Bryan, it is not clear how the purpose of Rule 15(D) survives.

In July 2004, Cora Erwin’s husband, Russell, died in their home after physicians who had cared for him during a recent hospitalization failed to diagnose and treat him for a pulmonary embolism. In July 2006, near the expiration of the statute of limitations for a wrongful death claim, Cora filed a wrongful death action against Joseph E. Bryan, M.D., an ICU physician who treated Russell while he was hospitalized. In her complaint, Cora, relying on Rule 15(D), also named several John Doe defendants, identifying them as physicians who had negligently failed to diagnose and treat Russell’s pulmonary embolism.

After the expiration of the statute of limitations, during discovery in the case, Cora learned that, during Russell’s hospitalization, Bryan had consulted with another physician, William Swoger, D.O., to evaluate Russell’s respiratory status. During his deposition, Bryan deflected blame toward Swoger when he testified that he had assumed that Swoger would manage Russell’s critical care. Although Cora, who worked in housekeeping at the hospital, knew who Swoger was and had seen him caring for Russell during her husband’s hospitalization, Bryan’s deposition testimony was the first opportunity she had to ascertain that Swoger might bear some responsibility for Russell’s death.

Thereafter, Cora moved to amend her complaint to substitute Swoger for a John Doe defendant. Although it initially permitted the amendment, the trial court ultimately dismissed her claims against Swoger as untimely filed. In concluding that the trial court properly dismissed Cora’s claims against Swoger, the Ohio Supreme Court reasoned that Cora could not rely on Rule 15(D) because, at the time that she filed her original complaint, Cora knew who Swoger was.

The Court arrived at this conclusion despite the fact that, prior to Dr. Bryan’s deposition testimony, Cora had no reason to believe that Swoger might bear some responsibility for her husband’s death. In other words, although she knew Swoger’s name, she did not know that he was a potential defendant. The Court was unmoved by this seemingly logical argument, observing, “Because Cora knew Swoger’s name, she did not have the option to designate him as a John Doe defendant in the original complaint, notwithstanding the fact that she had not identified him as being responsible for her husband’s death.”

The potential reach of the Court’s reasoning is broad. Although in this particular instance Cora knew Swoger’s name because she worked at the hospital, it is not difficult to imagine a defendant arguing that a plaintiff knew that defendant’s name – and thus could not rely on Rule 15(D) — because it appeared in the medical records associated with the injured person’s care.

One response to the Court’s reasoning is clear: a plaintiff could avoid the pitfall created by this hypertechnical application of Rule 15(D) by naming as a defendant every medical provider whose name appears in the medical records of the injured party.

Not so fast, says the Court – in Ohio, as in many other states, a plaintiff bringing a claim based on medical negligence must file an affidavit of merit with her complaint. As the Court noted, this requirement “prevents the filing of medical claims that are not supported by an expert’s opinion, and it deters filing actions against all medical providers who cared for a patient.” Or, as one of my wise colleagues recently observed, in this instance it serves to deter filing actions against all medical providers who injured a patient.

The reality of the Court’s decision is this: deserving plaintiffs will be deprived of recovery. Guilty tortfeasors will avoid responsibility. This is so because, particularly in the realm of medical negligence, it is not always easy to identify all of the culpable parties before discovery. Before the decision in Erwin, Rule 15(D) protected a plaintiff’s ability to bring her claim against each and every party responsible for her injury. After Erwin, a defendant need only demonstrate that the plaintiff knew his name, without regard to his culpability, in order to avoid being substituted for a John Doe defendant after the expiration of the statute of limitations. In other words, the Court’s decision increased a plaintiff’s pre-suit burden and gifted potential defendants with an easy escape from liability.

What do you think? Does the decision in Erwin represent a yet another victory for the forces of tort reform? Can the upcoming races for seats on the Ohio Supreme Court bring justice back to Ohio’s civil justice system? Leave a comment below!

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    Great post–it is a good primer on the decision and what it holds in store for the unwary. I wonder how many lawyers will make the mistake of assuming they can still use John Doe complaints in situations like these?

    This decision yet again makes it harder for people to get justice when someone injures them. Tort deform at its worst. You’re right that we need a change on the bench!