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Supreme Court denies family right to amend malpractice complaint

Edgar Brown fell from a roof and fractured several ribs.  He went to the Emergency Room, where his fractures were diagnosed and a chest tube was inserted to re-inflate a collapsed lung.  He was then sent home.  The next day, he went into cardiac arrest and died on the ambulance run to the hospital.  His family filed suit against the E.R. doctor, Peter Barrett, alleging that Barrett's management of Brown's care was negligent.

The defendant's insurer argued that the family's Notice of Intent to Sue and Affidavit of Merit were defective.  They issue wasn't raised, however, until after the two-year statute of limitations had expired, and the Defendants argued that the "tolling period" allowing the Personal Representative of an Estate additional time to file a lawsuit, did not allow the P.R. to correct or amend an Affidavit of Merit that contained a flaw.  The trial court and the Court of Appeals disagreed with this argument and refused to dismiss the family's case. 

This week, the Republican Justices on the Supreme Court overturned the lower court's ruling.  In a 4-3 vote, the insurance-oriented Justices held that the extra time allowed a P.R. to file a lawsuit did not grant the Estate extra time to amend a pleading.  If the defective pleading had been filed within the decedent's original two-year limitation period, it would have been amendable.  Because it was filed by the P.R. during the tolling period, however, it could not be amended, if deemed defective, and the case was dismissed "with prejudice" (without recourse).

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