(251) 299-0101


In Ex parte Mobile Infirmary Association, [Ms. 1091490, Jun. 24, 2011] __ So. 3d __(Ala. 2011), the Alabama Supreme Court held that an amended complaint substituting an actual party for a fictitious defendant did not relate back to the filing of the original complaint because the plaintiff failed to use due diligence to determine the true identity of Mobile Infirmary before the statute of limitations expired. At the time Plaintiff filed the original complaint, both the family of the deceased and their attorney possessed the deceased's medical records, which indicated that the deceased had been admitted to Mobile Infirmary, had undergone surgery there, and had follow-up treatment after the surgery. The Court held that "[a] reasonably diligent plaintiff possessing that information should have at least attempted to identify the corporation doing business as Mobile Infirmary Medical Center and include it as a defendant." The Court also noted that "a party is responsible for knowing the contents of medical records in its possession." Because the plaintiff had medical records that showed the deceased had been in the care of an entity doing business as "Mobile Infirmary Medical Center," the plaintiff "had a reasonable factual basis on which to name Mobile Infirmary Medical Center as a defendant. . .and later amend his complaint to reflect the correct name of the appropriate legal entity." Although the plaintiff's attorney searched the Alabama Secretary of State's website to determine Mobile Infirmary's correct legal identity and contacted Infirmary Health System's lawyer for the same purpose, he did not mention Mobile Infirmary or inquire about it in the initial discovery. As a result, the Court held that "[d]ue diligence may take several forms, but this clearly was not sufficient."