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Huggard v. Wake County Hospital System Inc.5/7/1991
This case requires that we consider G.S. § 1-166 (1983), the statute which allows a defendant to be sued in a fictitious name. The issue is whether the filing of a "John Doe" complaint tolls the statute of limitations.
The sequence of events which form the basis for this appeal are as follows. Eight year old Bobby Brown was admitted to defendant Wake County Hospital ("Wake") on 22 December 1985 where he was treated by the five named individual defendants, all doctors. Bobby was discharged on 25 December with a diagnosis of resolving aseptic meningitis. He was readmitted on 27 December and a CT scan revealed a cerebral hemorrhage secondary to an arteriovenous malformation. Despite immediate corrective surgery, Bobby's condition deteriorated and he died on 30 December 1985.
Plaintiff, administrator of Bobby's estate, filed suit on 29 December 1987, one day before the expiration of the two year statute of limitations for wrongful death in G.S. § 1-53(4). The named defendants in the original action were Wake, physicians Miller, Newton, Humlan and Ingram, and Doe One through Ten. On 11 February 1988, Alias and Pluries Summonses were issued for defendants Wake, Miller, Newton, Humlan, Ingram and Doe One through Ten. Defendants Wake, Miller, Newton, Humlan and Ingram were properly served between 16 February and 11 March 1988 and they timely answered the complaint.
Discovery proceeded and depositions were taken of Bobby's parents on 8 August 1988, Dr. Newton on 19 September 1988, and Drs. Humlan and Ingram on 28 April 1989. It was during the deposition of Dr. Newton that plaintiff first became aware of the existence and significance of Dr. Manne, who was Bobby's attending physician, and whose signature appears frequently in Bobby's medical records. Dr. Manne was deposed on 4 May 1989. On 2 June 1989, plaintiff moved to amend his complaint under G.S. § 1A-1, Rule 15 and G.S. § 1-166 by substituting Dr. Manne for Doe One as a named defendant. On 3 July 1989, plaintiff's
motion was allowed and the clerk was ordered to issue a summons and complaint to Dr. Manne. Plaintiff filed an amended complaint on 27 July 1989 and the clerk issued the civil summons, which was served on 2 August 1989. On 28 August 1989, Dr. Manne filed and served his answer alleging the defenses of lack of personal jurisdiction, insufficiency of process and the running of the statute of limitations.
On 13 February 1990, Judge Bailey dismissed the action as to Dr. Manne, with prejudice. On 25 July 1990, pursuant to a settlement agreement, plaintiff took a voluntary dismissal with prejudice as to Wake, Miller, Newton, Humlan and Ingram. Plaintiff took a voluntary dismissal without prejudice as to Doe Two through Ten.
Plaintiff contends on appeal that the trial court erred in granting defendant Manne's motion to dismiss because the court had personal jurisdiction over the defendant, there was sufficiency of process as to the defendant and the claim was not barred by the statute of limitations. Because we find that the claim was time barred, we need not discuss plaintiff's other contentions.
The issue is whether the filing of a suit against a "John Doe" defendant pursuant to G.S. § 1-166, tolls the statute of limitations such that at some time after the running of the statutory period, the complaint can be amended to name the now-identified defendant and the suit is not subject to dismissal by the fact that the limitations period has expired.
General Statutes § 1-166 provides:
When the plaintiff is ignorant of
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