No. 26603 -- Patsy L. Rose v. Thomas Memorial Hospital Foundation, Inc.
Starcher, J., concurring:
I agree with the reasoning employed by the majority in this case. The majority correctly concludes that the plaintiff's attorney simply didn't appeal the right order, and didn't challenge it in the circuit court in the right way.
But I am bothered by this outcome -- an innocent litigant loses because their attorney got lost in a maze of rules. None of this needed to occur, and the circuit judge probably could have made this case go forward rather than have declared it dead on arrival.
The plaintiff in this case went to a building on MacCorkle Avenue in South Charleston, West Virginia that has a sign out front with the logo Thomas Memorial Hospital. While there, she claims she was malpracticed upon by the hospital's staff, who wrote notes on pieces of paper with the heading Thomas Memorial Hospital. She hired a lawyer, and the lawyer called the Secretary of State to find out the proper name for the hospital.
The Secretary of State said the name of the business at the building was Thomas Memorial Hospital Foundation, Inc., a business which lists its principal office address as the same building on MacCorkle Avenue in South Charleston, West Virginia.See footnote 1 1 So the lawyer filed a complaint suing the business with that name for malpractice.
After the statute of limitation had expired, the attorney for the hospital went to court and said that plaintiff's lawyer screwed up and sued the wrong defendant. The hospital's lawyer pointed out that the plaintiff's lawyer should have sued the Herbert J. Thomas Memorial Hospital Association (Hospital Association). The lawyer -- representing both the Hospital Foundation and the Hospital Association -- moved to dismiss the lawsuit because the proper defendant was not sued within the statute of limitation.
Every lawyer knows that a statute of limitation is designed to protect a defendant from stale lawsuits, lawsuits of which a defendant has no knowledge and no ability against which to defend. When a certain period of time has passed, the defendant can generally relax, safe in the knowledge that the plaintiff will not surprise the defendant many years later with a suit.
In the instant case, the correct defendant -- the Hospital Association -- knew
it was being sued by the plaintiff for malpractice. The fact that the right defendant hadn't
been served with a piece of paper styled complaint, so as to trigger insurance coverage, is
irrelevant. The defendant knew a lawsuit was coming, and had a chance to defend, and had
no reason to relax.
My point here is that the hospital suffered no prejudice when the plaintiff sued the wrong defendant. The people in charge knew an action was coming, and sent their lawyer down to dismiss the complaint. The lawyer got the complaint dismissed against the Hospital Foundation. Then the judge let the plaintiff amend her complaint to sue the Hospital Association, whereupon the judge immediately dismissed the complaint as not being timely filed. This latter action was fundamentally unfair.
The plaintiff in this case should not have been penalized by the defendant's hide the peanut strategy of having multiple company names.See footnote 2 2 But the fact remains that the plaintiff's lawyer should have appealed the judge's order, or immediately filed a motion under Rule 59 of the West Virginia Rules of Civil Procedure.
And in the end, an injured person is failed by the justice system.