McCoy v. Robertson
| Decision Date | 02 May 2018 |
| Docket Number | No. CV–17–681,CV–17–681 |
| Parties | Kent Douglas MCCOY, Appellant v. Ronald D. ROBERTSON, M.D.; Mario Rueda, M.D.; Christopher W. Fowler, D.O.; Mary Katherine Kimbrough, M.D.; John Does 1–3; and Jane Does 1–3, Appellees |
| Court | Arkansas Court of Appeals |
Harold F. Cook, Little Rock; Whitney M. Cossio; and Polewski & Associates, by: John Polewski, for appellant.
Friday, Eldredge & Clark, LLP, Little Rock, by: T. Michelle Ator and Martin A. Kasten, for appellees.
On December 12, 2015, appellant Kent McCoy filed a medical-malpractice action against appellee doctors Ronald Robertson, Mario Rueda, Christopher Fowler, and Mary Katherine Kimbrough (collectively "the doctors"), nurses Courtney Owen and Kristin Papan ("the nurses"), John Does 1–3, and Jane Does 1–3, asserting that on April 20, 2014, while under their care, he sustained injuries due to an undiagnosed epidural hematoma
, resulting in paralysis. Pursuant to the doctors' motion, the Pulaski County Circuit Court granted dismissal of the action in an order filed April 21, 2017, due to McCoy's failure to properly serve the doctors with a copy of the complaint and summons within 120 days; the dismissal was with prejudice because the two-year statute of limitations applicable to medical-malpractice actions had expired.1 The issues on appeal are whether McCoy properly effected service and whether he is entitled to the benefit of the savings statute. We hold McCoy did not properly effect service and is not entitled to the benefit of the savings statute; therefore, we affirm the circuit court's dismissal of McCoy's complaint with prejudice.
After McCoy's complaint was filed, the nurses, through Sherri Robinson, associate general counsel for the University of Arkansas for Medical Sciences (UAMS), filed a motion on January 6, 2016, to dismiss McCoy's complaint as to them, alleging they were immune from suit pursuant to article 5, section 20 of the Arkansas Constitution and Arkansas Code Annotated section 19–10–305 (Repl. 2016).2 McCoy filed an amended complaint dismissing the nurses without prejudice; the circuit court entered an order dismissing the nurses from the lawsuit without prejudice; and an order amending the case caption to remove the nurses as defendants.
On January 7, 2016, Drs. Robertson, Fowler, and Kimbrough filed an answer to McCoy's complaint. In the answer, each of the doctors, in addition to other defenses, affirmatively raised the issues of insufficiency of process and service of process and alleged McCoy's complaint should be dismissed with prejudice. On January 12, 2016, Dr. Rueda filed a separate answer, also affirmatively raising the issues of insufficiency of process and service of process and alleging the complaint must be dismissed with prejudice. The doctors also filed an amended answer in response to the amended complaint, again raising insufficiency of process and service of process.
McCoy sent requests for admissions to each doctor. The last request stated, "Admit that you have been properly served with a Notice, Summons, and Complaint in this case." All the doctors denied this request for admission in their separate responses.
On January 11, 2017, McCoy filed a motion to strike the doctors' defenses of lack of personal jurisdiction, insufficiency of process, insufficiency of service of process, and failure to state facts upon which relief can be granted. The doctors filed a joint response, arguing no valid service had been effected on any of them; they learned of the lawsuit informally and filed answers pleading such defenses; and the defenses were all valid. On January 19, 2017, the doctors filed a motion to dismiss McCoy's complaint, alleging that because they had not been properly served within 120 days as required by the Arkansas Rules of Civil Procedure, McCoy's complaint must be dismissed, and because service was never commenced within two years of the alleged wrongful act,3 the dismissal must be with prejudice.
In response to the doctors' motion to dismiss, McCoy asserted that should the motion to dismiss be granted, the savings statute should be applicable and dismissal should be without prejudice because he had attempted to complete service in a timely manner. In his brief in support of his response, McCoy stated he mailed copies of the original complaint and summons via certified mail with restricted delivery, return receipt requested, to all the doctors, the nurses, and the John and Jane Does to UAMS at 4301 W. Markham Street, Suite 520, Little Rock, Arkansas 72205, on December 8, 2015. On December 11, 2015, the last status update listed by the postal service, tracking indicated all packets except Dr. Rueda's were "In Transit to Destination." On December 28, 2015, Dr. Rueda's packet was returned to McCoy's counsel, marked as undeliverable because he was no longer at UAMS. On December 29, 2015, McCoy mailed copies of the original complaint and summons to Dr. Rueda via certified mail, restricted delivery, return receipt requested, to Johns Hopkins Hospital, 600 N. Wolfe Street, Administration 400, Baltimore, Maryland 21287. Postal-service tracking showed the packet was delivered on January 5, 2016.4 McCoy further claimed he spoke with UAMS associate general counsel Robinson, counsel for the nurses, on January 19, 2016, who confirmed she had received the service packets for all the defendants, including the doctors. McCoy also asserted he served the doctors' counsel with a copy of the amended complaint.
A hearing on the doctors' motion to dismiss was held on April 20, 2017. Special Judge Kathleen Bell presided. The doctors' counsel argued the motion to dismiss was based on the expiration of the statute of limitations prior to the doctors being served with a summons and complaint; the two-year medical-malpractice statute of limitations ran on April 20, 2016; the complaint was filed on December 2, 2015, prior to the expiration of the statute of limitations; and McCoy had 120 days to properly serve the summons and complaint, which would give him to April 1, 2016. Counsel further contended that because the complaint was never served in accordance with Rule 4 of the Arkansas Rules of Civil Procedure, the action was not commenced within the statute of limitations, and the complaint must be dismissed with prejudice. The doctors' counsel pointed out that personal service was never attempted on any of the doctors; McCoy elected service by mail; and McCoy did not mail the summons and complaint to the doctors' home addresses; rather, he mailed them to a general address at UAMS; tracking information indicated the packets were mailed, but there was no proof the documents were ever delivered or received; and there were no green cards or any proof that an agent of the doctors accepted service in accordance with postal regulations. With respect to Dr. Rueda, while a green card was produced, a person other than Dr. Rueda—a "T. Thompson"—had signed for the packet, and there was no proof who that person was or if he or she was an agent for Dr. Rueda. The doctors' counsel argued there were no documents to indicate any of the doctors had refused service; all of the doctors had raised lack of service as a defense in their answers; unless McCoy made a prima facie showing of service, the burden did not shift to the doctors to prove they had not been properly served; simply because UAMS associate general counsel Robinson knew of the lawsuit did not translate into the doctors having knowledge; and actual knowledge of a case did not overcome the requirement of effective service.
McCoy's attorney argued the original complaint was filed on December 2, 2015; copies of the original complaint and summons were mailed to the doctors on December 8; and postal-service tracking indicated the packets were in transition to their destinations on December 11. McCoy's counsel admitted no green cards had been returned from the postal service. However, it was contended that Dr. Rueda's packet was delivered on December 5, 2016. McCoy's counsel claimed he spoke with Ms. Robinson, who confirmed she had received the service packets for all defendants. Counsel argued the reason McCoy had not filed any return-receipt cards was because the packets were still in transit, and they could not file something they did not have in order to prove service; he agreed no information was available. When questioned as to why McCoy believed he had obtained good service on Dr. Rueda, his counsel replied he was instructed by the Johns Hopkins legal staff to send the information to the address provided and "someone" would sign for it. As to the other three doctors, counsel argued he was instructed to send the information to a general delivery post office box at UAMS, which he had done in previous cases, and he had never had an issue with service of process until this case. He argued the doctors obtained knowledge of the lawsuit in some way, which he believed was by virtue of having received the certified mail.
Following arguments of counsel, the special judge granted the doctors' motion to dismiss with prejudice, finding service was not completed, and therefore the savings statute was not applicable. An order to this effect was filed on April 21, 2017.5
On May 3, 2017, McCoy filed a motion to alter or amend and vacate the April 21 order dismissing his complaint with prejudice. McCoy asserted the dismissal should be without prejudice, as copies of the complaint and summons had been placed in the mail, which he claimed effectuated service; there had been no showing that the defendants had failed to be served; and even if the service was inadequate, he was still entitled to a dismissal without prejudice, which would allow him to avail himself of the savings statute and refile his complaint within one year of dismissal. The...
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