Kelly on Malpractice

In Walker v. Abubaker, 2006 WL 2668856 (E.D.Tenn), the plaintiffs brought a medical malpractice action against Dr. Abubaker and Cherokee Health Systems (“Cherokee”) as his employer. Two months later, the plaintiffs learned that Locumtenens was Abubaker’s employer. At the same time, the plaintiffs learned that Cherokee was not Dr. Abubaker’s employer. Cherokee moved for summary judgment. The Knox County Circuit Court granted summary judgment as to Cherokee. The case was then removed to federal court. The plaintiffs moved to amend their complaint in federal court to name Locumtenens as a defendant after the statute of limitations had expired. Locumtenens moved to dismiss the claims as time barred. Plaintiffs argued that the discovery rule saved the action against Locumtenens because they “discovered” Locumtenens was Abubaker’s employer after the statute of limitations had expired. The district court agreed. The district court also applied the Rule 15.03 relation-back doctrine to bolster its opinion. This is the first case where a court has applied the discovery rule of Stanbury v. Bacardi, 953 S.W.2d 671, 677 (Tenn.1997) to situation where a new employer is “discovered” after the statute of limitations has expired.

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