(251) 299-0101

FICTITIOUS PARTY PLEADING - EX PARTE YONUS ISMAIL, M.D.

In Ex parte Yonus Ismail, M.D., [Ms. 1100726, Aug. 12, 2011] So. 3d (Ala. 2011), Randy Paradise ("Plaintiff") suffered fall-related injuries while a patient at Highlands Medical Center ("HMC"). Plaintiff filed suit against HMC. Plaintiff's complaint named 17 fictitious defendants. Through pre-trial discovery, Plaintiff filed discovery requests asking HMC to identify the physician in charge of Plaintiff's care. HMC objected to these requests. Plaintiff then filed a motion to compel HMC to identify the physician in charge of Plaintiff's care, which was granted. After two months had passed and HMC had not yet identified the physician in charge of Plaintiff's care, Plaintiff filed a motion for sanctions. HMC filed a response to Plaintiff's motion and simultaneously supplemented HMC's previous discovery responses. These supplemental responses identified Ismail as a physician in charge of Plaintiff's care. This supplement was provided after the statute of limitations had expired. Plaintiff amended his complaint to substitute Ismail for one of the fictitiously named defendants. Ismail then moved for summary judgment, arguing that the statute of limitations had expired. The trial court denied Ismail's motion. Ismail petitioned the court for a writ of mandamus. Relying chiefly on reference to Ismail in Plaintiff's medical records and on Ex parte Snow, 764 So. 2d 531 (Ala. 1991), the Alabama Supreme Court held that Plaintiff "did not exercise due diligence in identifying [Ismail] as a party." The Court granted Ismail's petition and issued the writ.

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