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Chalick v. Cooper Hospital

March 2, 2000

CONRAD CHALICK, INDIVIDUALLY AND AS GENERAL ADMINISTRATOR AND ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF MICHAEL ELLIS CHALICK,
PLAINTIFF,
V.
COOPER HOSPITAL/UNIVERSITY MEDICAL CENTER, RAJA SALEM, M.D., CHIN-WEI HUANG, M.D., EDWARD G. MOSS, M.D., ROBERT M. WHITE, M.D., UNIVERSITY RADIOLOGY SERVICES, AND JOHN AND JANE DOES 1-50,
DEFENDANTS.



The opinion of the court was delivered by: Kugler, United States Magistrate Judge

FOR PUBLICATION

CAMDEN VICINAGE

HONORABLE STEPHEN M. ORLOFSKY

OPINION

This matter comes before the Court upon Plaintiff Conrad Chalick's Motion to Amend the Complaint. Plaintiff seeks to replace a fictitiously-named John Doe defendant with Richard Burns, M.D., pursuant to Fed. R. Civ. P. 15(c). It is uncontested that the original complaint was filed within the limitations period, but the request to add Dr. Burns as a defendant was made after the limitations period expired, and that, therefore, the question before this Court is whether the addition of Dr. Burns relates back to the filing of the original complaint under Fed. R. Civ. P. 15(c). Because, as discussed below, the court finds that defendants' violations of Fed. R. Civ. P. 26(a) preclude them from claiming that Dr. Burns did not receive notice and was unaware that he was a proper defendant, plaintiff's motion shall be granted.

I. BACKGROUND

Plaintiff initiated this medical malpractice action by filing a complaint in this court on or about March 9, 1999, claiming diversity jurisdiction under 28 U.S.C. §1332. Plaintiff named Cooper Hospital- University Medical Center and University Radiology Services, P.A., as defendants, along with four individual physicians: Raja Salem, M.D., Chin-Wei Huang, M.D., Edward G. Moss, M.D., and Robert M. White, M.D. Plaintiff also named as defendants John Does 1-50 and Jane Does 1-50, whom plaintiff identified as:

individuals, corporations, partnerships, associations, joint ventures or other legal entities whose identities are unknown at present, but who were duly licensed nurses and/or licensed practical nurses and/or head nurses and/or nursing supervisors of Cooper Hospital-University Medical Center in May of 1997 at the time that Michael Ellis Chalick was a patient at Cooper Hospital-University Center, were nurses and/or nursing supervisors and/or staff nurses employed by the defendant and/or agents of the defendant Cooper Hospital-University Medical Center to provide nursing care and/or treatment to the plaintiff's decedent, Michael Ellis Chalick, for certain physical conditions, were duly licensed physicians engaged in the practice of their profession at Cooper Hospital-University Medical Center, Camden, New Jersey and who undertook to treat and/or care for Michael Ellis Chalick for certain physical conditions and who failed to exercise ordinary care and/or failed to exercise the degree of care and skill commonly exercised by nurses and/or physicians in like cases or were administrators responsible for the implementation or supervision of medical service delivery systems, which individuals at all times relevant hereto were the agents, servants and/or employees or otherwise authorized to act on behalf of or in concert with the defendant Cooper Hospital-University Medical Center, acting within the course and scope of their employment and/or retention. (Complaint, ¶11).

Plaintiff alleged that defendants were responsible for the death of plaintiff's decedent, Michael Ellis Chalick, who was admitted to Cooper Hospital-University Medical Center on May 30, 1997, following a parachuting accident. Plaintiff claims in the First Count that "all defendants failed to exercise ordinary care and/or failed to exercise the degree of care commonly exercised by physicians, nurses or professionals in like cases," and that this failure constituted negligence, carelessness, and/or recklessness which was the proximate cause of plaintiff's injuries. (Complaint, ¶¶13, 14). Michael Chalick died on May 31, 1997. (Complaint, ¶12).

The Second Count of the complaint is directed to defendant Cooper Hospital, and the Third and Fourth Counts are pled as a survival action and wrongful death action, respectively.

On March 31, 1999, plaintiff filed an amended complaint to correct an error in the caption.

There is no dispute that the named defendants were timely served. Defendants University Radiology and Drs. White and Moss [hereinafter referred to as the "University Radiology defendants"] filed their answer to the amended complaint on or about May 5, 1999. Defendants Cooper Hospital and Drs. Salem and Huang [hereinafter referred to as the "Cooper Hospital defendants"] filed their answer to the amended complaint on or about May 19, 1999.

A. Rule 26(a) Disclosures

On or about June 2, 1999, the Cooper Hospital defendants served plaintiff with their Rule 26(a) disclosures. With respect to persons with relevant knowledge, defendants identified the four individual physician defendants, along with five other physicians or nurses, including Dr. Richard Burns. *fn1 (See Letter 6/2/99, attached as Ex. "F" to Kopelson Certif.). Defendants provided nothing other than Dr. Burns' name; they did not provide Dr. Burns' address or the basis of his knowledge, as is required under Fed. R. Civ. P. 26(a)(1)(A).

On or about June 14, 1999, the University Radiology defendants served plaintiff's counsel with their Rule 26(a) disclosures, also identifying Dr. Richard Burns as an individual with relevant knowledge. *fn2 (See Letter 6/14/99, attached as Ex. "G" to Kopelson Certif.). These defendants also failed to provide the information required by Rule 26(a)(1)(A), other than Dr. Burns' name.

B. Interrogatories and Depositions

Plaintiff's counsel then served interrogatories and deposition notices. On or about July 14, 1999, Defendant Dr. Huang responded to plaintiff's interrogatories. Form C(3) Interrogatory No. 15 stated in relevant part:

15. State the names and addresses of all consultants or other physicians who saw, examined and treated plaintiff at your request for the condition forming the basis of the complaint, . . . .

Defendant Huang responded: "No consultations per se, however, thoracic and lumbar spine x-rays were ordered and trauma attending Dr. Burns was notified of the change in patient's condition." (See Answers to Plaintiff's Form C, C(3), and Supplemental Interrogatories on Behalf of Defendant Chin-Wei Huang, M.D., attached as Ex. "K" to Kopelson Certif.).

In addition, in response to Supplemental Interrogatory No. 2, which asked for the identities of all persons known to fit the description of the John Doe defendants, Defendant Huang objected to the interrogatory, but referred plaintiff to his response to Form C Interrogatory No. 4, which identified Dr. Richard Burns, among others, as persons with relevant knowledge. (See Pl. Brief, at 4-5). *fn3

On or about August 18, 1999, defendant Dr. Salem served plaintiff with responses to interrogatories. In response to Form C Interrogatory No. 4, Dr. Salem also identified Dr. Richard Burns as a person with relevant knowledge. (See Answers to Plaintiff's Form C, C(3), and Supplemental Interrogatories on Behalf of Defendant Raja Salem, M.D., attached as Ex. "O" to Kopelson ...


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