Ham v. Sterling Emergency Services of Midwest, Inc., 080714 FED6, 14-5043

Docket Nº:14-5043
Opinion Judge:HELENE N. WHITE, Circuit Judge.
Party Name:TERRELL W. HAM, Plaintiff-Appellant, v. STERLING EMERGENCY SERVICES OF THE MIDWEST, INC.; SCOTT WILSON, M.D., individually and in his official capacity as an employee of Sterling Emergency Services of the Midwest, Inc., Defendants-Appellees.
Judge Panel:BEFORE: GIBBONS, SUTTON, and WHITE, Circuit Judges.
Case Date:August 07, 2014
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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TERRELL W. HAM, Plaintiff-Appellant,

v.

STERLING EMERGENCY SERVICES OF THE MIDWEST, INC.; SCOTT WILSON, M.D., individually and in his official capacity as an employee of Sterling Emergency Services of the Midwest, Inc., Defendants-Appellees.

No. 14-5043

United States Court of Appeals, Sixth Circuit

August 7, 2014

NOT RECOMMENDED FOR PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY

BEFORE: GIBBONS, SUTTON, and WHITE, Circuit Judges.

HELENE N. WHITE, Circuit Judge.

An untreated spinal abscess rendered appellant Terrell W. Ham paraplegic while he was serving a four-month sentence in the Marshall County Detention Center (MCDC) in Marshall County, Kentucky. This appeal concerns the timeliness of Ham's claims against Dr. Scott Wilson, M.D., the emergency-room physician who examined Ham but failed to identify the abscess, and Sterling Emergency Medical Services of the Midwest, Inc. (Sterling), the practice for which Wilson worked as an independent contractor. Ham concedes that he filed his first amended complaint, naming Sterling and Wilson as defendants for the first time, outside the one-year limitations period applicable to his claims, but he argues that his claims against them are nonetheless timely under Kentucky's tolling statute, and Federal Rule of Civil Procedure 15(c)'s relation-back rule. We AFFIRM the district court's dismissal.

I.

On February 19, 2010, Ham complained to deputy jailers at the detention center that he could not get out of bed, could not feel his legs, and that his entire left side was numb. MCDC Jailer Roger Ford released Ham on bond so that his family could take him to the emergency room at Marshall County Public Hospital (the Hospital). When Ham checked in at the emergency room registration desk at about 6:20 p.m., Dr. Louis Forte was the physician on duty. Dr. Forte was identified as the physician on duty on Ham's admission paperwork, and because of how the Hospital computer system works, Forte's name automatically populated Ham's medical charts from the evening as the physician who treated Ham. Forte's shift ended at 7:00 p.m., however, before he played any role in Ham's care, and he was replaced by Dr. Scott Wilson. Dr. Wilson is the physician who examined Ham (and discharged him without identifying the spinal abscess), but Dr. Wilson's name, aside from two illegible signatures, appears in Ham's records only once, on Ham's discharge form where it states, "you have been seen by Dr. Wilson."

At his deposition, Ham testified that he knew when he was in the Hospital emergency room that Dr. Wilson was the physician examining him, but he thought that Dr. Forte—who he had met before and had spotted as he entered the Hospital—was still on the premises and making decisions regarding his care. Ham's sister and daughter corroborated Ham's testimony that he was aware that Dr. Wilson was the physician treating him that night: each testified that Ham complained the next day that he had been unable to see Dr. Forte and was treated by Dr. Wilson instead. R. 134, Deposition of Jessica Ham at 31("[H]e said that he had been treated by a Dr. Wilson because . . . Dr. Forte[] was not in or not available."); R. 139, Deposition of Dottie Hamlet at 31, 66. Wilson testified that he introduced himself to Ham by name (although Ham did not mention that in his testimony, instead saying he could not "exactly remember how [he] found out" Wilson's name). Ham's attorney Douglas Myers was evidently also aware that "Dr. Wilson" played a role in Ham's care. In a letter asking Ham to review an initial draft of the complaint, Myers stated, "[a]s you can see, we have left a blank for Dr. Wilson's first name. Once I have this, I will fill this in."1

Ham filed suit on January 24, 2011—roughly a month before expiration of the statute of limitations on February 21, 2011—but the complaint did not name Wilson, or Sterling, as a defendant. Ham brought claims for medical negligence, the tort of outrage (Kentucky's version of intentional infliction of emotional distress), and violation of his Eighth Amendment rights under 42 U.S.C. § 1983. He named as defendants the County, various MCDC officials, the Marshall County Public Hospital District Corporation (which owns and operates the Hospital), Dr. Forte, and ten John and Jane Does, described as "employees and heath care professionals of the Marshall County Detention Center and/or the Marshall County Hospital." The complaint described the Marshall County Public Hospital District Corporation as Forte's employer.2 In fact, Wilson and Forte both worked as independent contractors for Sterling, and Sterling contracted with the Hospital to provide emergency room physicians. The complaint did not name, or mention, Wilson or Sterling.

Forte was served with the complaint on February 15, 2011, and filed his Answer a week later, stating, among other things, that he was not the physician who treated Ham. On March 29, 2011, the Hospital filed its initial disclosures, see Fed. R. Civ. P. 26(a)(1), listing Dr. Scott Wilson as among the individuals likely to have discoverable information related to Ham's claims. A little over three months later, on July 5, 2011, Ham sought leave to amend his complaint to add Wilson and Sterling as defendants. The district court granted leave to file the amended complaint on August 2, 2011, and Ham filed it the same day.3 Three months after that, Ham dismissed Forte as a defendant. On March 30, 2012, Wilson and Sterling filed a motion for summary judgment contending that Ham's claims against them were time-barred. The district court granted the motion. Ham appeals that decision and we affirm.

II.

Ham does not dispute that his claims are subject to a one-year statute of limitations that expired on or about February 21, 2011. He argues that his claims against Wilson and Sterling are nonetheless timely under (1) Kentucky Revised Statute § 413.190(2), which provides that statutes of limitation are tolled when the defendant obstructs prosecution of the action; and (2) Federal Rule of Civil Procedure 15(c), which provides that amendments to a pleading...

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