Summary 2011 WY 58

Summary of Decision March 31, 2011

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Case Name: Adams v. Walton

Citation: 2011 WY 58

Docket Number: S-10-0109

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461907

Appeal from the District Court of Sweetwater County, Honorable Nena R. James, Judge

Representing Appellant (Plaintiff): V. Anthony Vehar of Vehar Law Offices, Evanston, Wyoming; Clark Newhall of Law Office of Clark Newhall, MD, JD, Salt Lake City, Utah

Representing Appellee (Defendant): Stephenson D. Emery of Williams, Porter, Day & Neville, Casper, Wyoming

Date of Decision: March 31, 2011

Facts: Appellant allegedly received negligent medical treatment from Appellee. Appellant brought a medical malpractice claim against Appellee, but filed the legal action after the applicable statute of limitations had run. He alleged the statute of limitations was tolled because Appellee had left the state and he could not find her to effectuate service of process. The district court disagreed and granted summary judgment to Appellee based on the running of the limitation period.

Issues: Whether the district court properly granted summary judgment based on the statute of limitations when Appellee departed the state and Appellant had no knowledge of her whereabouts.

Holdings: According to the undisputed facts, Appellant had no intention of bringing a medical malpractice suit against Appellee. It was only when he was informed the defense theory for the physicians he had sued for malpractice would be to implicate Appellee that Appellant changed his mind. This occurred more than two and a half years after the date of the alleged malpractice. He did not amend his complaint to add Appellee as a defendant until more than three years after the date of the alleged malpractice. The statute of limitations for a medical malpractice action is two years. However, Appellant argues that since Appellee left the state at some point after the date the cause of action accrued his action is timely under the tolling statute [Wyo. Stat. 1-3-116 (2009)].

A statute of limitations, by definition, limits the amount of time a potential plaintiff has to file a legal action. Appellant did not file a legal action against Appellee until more than three years after the cause of action accrued. The fact that she was out of state is not enough to invoke Wyo. Stat. 1-3-116, given the fact that Appellant had no intention of bringing legal action against her within the limitation period.

Affirmed.

J. Golden delivered the opinion for the court.