finding that, where plaintiffs possessed medical records identifying treating physician before they filed original complaint, “[they] did not exercise due diligence ... before filing their complaint, in identifying [physician] as the proper party to be sued”
How later courts described this case
- finding that, where plaintiffs possessed medical records identifying treating physician before they filed original complaint, “[they] did not exercise due diligence ... before filing their complaint, in identifying [physician] as the proper party to be sued”
- "Dr. Ismail styled his motion as a motion to dismiss. However, the trial court had before it materials outside the pleadings, and it did not expressly decline to consider those materials in making its ruling. Therefore, the motion to dismiss was converted into a motion for a summary judgment."
Written by the judges who cited it.
The opinion
SHAW,
Justice (concurring in part and concurring in the result).
I concur with the holding of the main opinion that the relation-back doctrine does not apply in this case because of the lack of due diligence by the plaintiffs before and at the time of the filing of the complaint. As to the discussion in the main opinion regarding the lack of due diligence in identifying Dr. Younus Ismail beyond the time of the filing of the original complaint, I express no opinion.