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Adams v. Walton

March 31, 2011

REX ADAMS, APPELLANT (PLAINTIFF),
v.
BETTY WALTON, M.D., APPELLEE (DEFENDANT).



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

The opinion of the court was delivered by: Golden, Justice.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

[¶1] Rex Adams allegedly received negligent medical treatment from Dr. Betty Walton. Adams brought a medical malpractice claim against Dr. Walton, but filed the legal action after the applicable statute of limitations had run. Adams alleged the statute of limitations was tolled because Dr. Walton had left the state and he could not find her to effectuate service of process. The district court disagreed and granted summary judgment to Dr. Walton based on the running of the limitation period. We affirm.

ISSUE

[¶2] The issue as presented is whether the district court properly granted summary judgment based on the statute of limitations when Dr. Walton departed the state and Adams had no knowledge of her whereabouts.

FACTS

[¶3] On August 3, 2005, Adams received medical treatment from Dr. Mark Lea. On August 11, 2005, Adams was treated by Dr. Kent Katz for complications associated with Dr. Lea's treatment. On August 16, 2005, Adams was sent to the emergency room of Memorial Hospital of Sweetwater County by his primary care physician because of worsening in his condition. He was treated by Dr. Walton. While he was in the emergency room he suffered a cardiac arrest. Adams was subsequently transferred to a hospital in Utah.

[¶4] Adams' attorney reviewed the medical records of Drs. Lea, Katz and Walton. He determined there was no evidence of negligent medical treatment on the part of Dr. Walton. Consequently, on October 19, 2006, Adams filed a medical malpractice suit against only Drs. Lea and Katz.

[¶5] On March 21, 2008, Dr. Katz filed a designation of expert witnesses. On the list was an expert in emergency medicine. The expert was scheduled to testify that Dr. Walton was negligent in her treatment of Adams, proximately causing his complained of injuries. Adams' attorney disagreed with the expert's conclusions but:

Because Drs. Lea and Katz will apparently attempt to allocate fault to Dr. Walton, I determined that the proper legal action for my client was to amend the complaint and name Dr. Walton as a defendant, regardless of my personal opinion of her culpability.

[¶6] Shortly after Adams received Dr. Katz's designation, Adams began looking for Dr. Walton. He discovered she was a locum tenens physician who was not resident in Wyoming. At some point after August 16, 2005, the date of the alleged malpractice, she had left the state to practice elsewhere. Her whereabouts were relatively easy to determine and eventually, on August 21, 2008, Adams filed an "Amended Complaint" adding Dr. Walton as a defendant.

[ΒΆ7] Dr. Walton moved for summary judgment on the grounds the claim was filed outside the statute of limitations. Adams responded that the statute of limitations had been tolled because Dr. Walton had left the state after the cause of action accrued and he had been unable to ...


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