What if You or Your Lawyer Make a Mistake and Sue the Wrong Doctor?
It can happen. If your case was complicated, or your treatment involved several doctors, it can be confusing and will require the assistance of medical experts or dental experts to sort it out and identify the real culprits.
There was a case that was bungled by a famous malpractice lawyer. He sued the obstetrician, who delivered his client’s baby, but the lawyer found out, after the statute of limitations had run, that the anesthesiologist was responsible for the baby’s injury. The obstetrician proved he was not at fault, and the anesthesiologist could no longer be sued. Does this case prove that you should sue everybody, just to protect yourself?
No, because there is a legal maneuver that protects you in such a situation. In most states, a lawyer can put what is known as a Doe Clause in his complaint. In addition to the people who are obviously at fault, he also names “John Doe, Jane Doe, and the XYZ Corporation” as defendants. This allows your lawyer to add names later, once he has had a chance to study your clinical records. It also stops the clock and prevents the statute of limitations from running out on people who might have caused your injury but whom you did not know about at the time you file your complaint.
Let us say that you file your case a month before the statute of limitations runs, and it is another three months before you get copies of the clinical records from the hospital. You only find out that a certain doctor was partly to blame long after the deadline has passed. You can then amend your complaint and put his name in place of John Doe. If the doctor is a female, you put her name in place of Jane Doe. If it is a corporation, such as the manufacturer of defective equipment, you put the name of the corporation in place of XYZ Corporation. When you have all the information and have amended your complaint to include all necessary defendants, your lawyer drops the Doe clause, and you are facing real people. This Tolls the Statute (stops the clock) on Undiscovered Tortfeasors, people who injured you but whose identify you did not know at the time your complaint was filed.
Why the XYZ Corporation? This is used by sophisticated lawyers. Some courts have held that John Doe and Jane Doe can only refer to real people. Since lots of doctors have professional corporations, if you only sue the doctor, you may find that the money is in his corporation, and you should have named it, too. And, the hospital is almost certainly organized as a corporation.
If you were injured by hospital equipment, such as an electric cautery or an x-ray machine, you might not find out who the manufacturer was until after your lawyer has filed a lawsuit and obtained the information from the hospital. In the meantime, the statute of limitations might run out, and you would not be able to file your lawsuit. If you were burned by the x-ray machine, you might end up suing the manufacturer, which is something you could not have anticipated when you filed your lawsuit. With an XYZ Corporation named in the complaint, your lawyer will have covered all the bases and can name responsible corporations as defendants whenever he discovers their identity and the part they played in causing your injuries.
JD.MD has access to hundreds of Medical and Dental Expert Witnesses in the United States and Canada. Contact us to have your case evaluated for merit.