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Worden v. Kirchner – Timely Filing of Injury Complaint Critical

Dec 17, 2013 - Medical Malpractice, Wrongful Death by

In order to ensure that your Alabama medical malpractice claim has the best chance of success, the importance of a timely filing cannot be overstated. Failure to do so can result in having your claim dismissed before it is ever even considered by the courts. drugscn

Generally, it’s a pretty straightforward rule. Alabama statutes hold that you have two years from the time that the alleged malpractice occurred within which to file your lawsuit. After that you lose your right to sue.

However, there are exceptions. They are very specific, though, and you should expect the defense to fight you tooth-and-nail over an exception request.

The case of Worden v. Kirchner illustrates what can happen when complaints are not filed in a timely manner and when proper arguments aren’t made for an exception. This case was especially problematic because it was filed pro se, meaning the complainants filed the lawsuit without the benefit of legal representation from an experienced malpractice lawyer. In light of this, it is not surprising that their efforts did not produce the desired result.

Although the Worden case is one out of Arkansas, many of the same issues are applicable here in the Alabama courts.

According to court records, a Florida man was visiting relatives in Arkansas when he became ill and was transported by ambulance to a local hospital. Upon his arrival, the man told hospital staffers that he had a history of myocardial infarction (a heart condition). However, the hospital staff failed to conduct any assessment of his heart, as would be immediately required for anyone with a history of myocardial infarction. Instead, emergency room staffers misdiagnosed him as having abdominal pain. In fact he was suffering a heart attack. He died after collapsing in a hallway of the hospital, between emergency room departments.

The man’s heirs allege that the misdiagnosis resulted in a delay that amounted to a lapse in the appropriate level of care. They sued both the emergency room physician and the hospital. However, their complaint was filed in November of 2011 – more than three years after their father had passed away.

The defendants successfully argued that the plaintiffs failed to file a timely medical malpractice action within the two-year statute of limitations. The plaintiffs argued that a previous action was filed in 2010 naming different defendants.

However, the plaintiffs, again representing themselves, did not file a timely response to the defense motion to dismiss. As such, the defense motion for a summary judgment was granted. The supreme court affirmed this judgment.

Although the plaintiffs attempted to argue that the summary judgment was granted while they were still in the process of discovery, the plaintiffs failed to alert the circuit court that discovery was ongoing or that this information was pertinent to their defense of motions to dismiss. By failing to bring this to the attention of the court, they essentially forfeited their right to bring this argument before the appellate court.

We empathize with the plaintiffs in this case because it does seem, based on the facts presented, that medical malpractice may well have contributed to their loved one’s early death. However, the case serves as a lesson for why it is so important to consult an experienced medical malpractice lawyer – and to do so as soon as possible after the incident.

The case was dismissed on procedural grounds. The plaintiffs may well have had a good chance of winning their case had they approached it differently.

Additional Resources:

Worden v. Kirchner, Dec. 12 2013, Supreme Court of Arkansas, Appeal from Pulaski County Circuit Court

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