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Larry Hoffman, As Personal Representative of the Estate of Gregory v. Brian Darnell

April 13, 2011

LARRY HOFFMAN, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF GREGORY BRYAN PICKETT, III, DECEASED, APPELLANT (PLAINTIFF),
v.
BRIAN DARNELL, D.O., AND JOHNSON COUNTY HOSPITAL DISTRICT, APPELLEES (DEFENDANTS).



Appeal from the District Court of Johnson County The Honorable John G. Fenn, Judge

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

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

BURKE, J., delivers the opinion of the Court; VOIGT, J., files a special concurrence.

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] This case involves a claim arising under the Wyoming Governmental Claims Act (WGCA), Wyo. Stat. Ann. §§ 1-39-101 through -121 (LexisNexis 2007). Appellant, Larry Hoffman, as personal representative of the estate of the decedent, Gregory Bryan Pickett, III, brought a wrongful death suit against Dr. Brian Darnell and the Johnson County Hospital District (Hospital). The district court dismissed the action with prejudice, finding that it lacked subject matter jurisdiction to allow Appellant to amend his complaint. We reverse.

ISSUES

[¶2] Appellant presents the following issues:

1. Whether the district court has discretion to allow leave to amend a complaint pursuant to W.R.C.P. 15(a) to allege compliance with the constitutional and statutory requirements for governmental claims with specificity and, if so, whether the amendment relates back to the filing date of the original complaint.

2. Whether this Court usurped the authority of the Wyoming Constitution and the Wyoming Legislature by creating the "special pleading" rules, such that it violates the separation of powers between the branches of government.

3. Whether W.R.C.P. 12(h)(3) requires the district court to dismiss a complaint for lack of subject matter jurisdiction when it has notice the complaint is defective.

FACTS

[¶3] Appellant, as personal representative of the decedent's estate, initiated a wrongful death action against the Hospital and Dr. Darnell upon filing a complaint in the Johnson County District Court. According to the complaint, on August 20, 2006, at 1:40 a.m., Mr. Pickett was taken to the Hospital's emergency room after complaining of back, side, and groin pain. Dr. Darnell, the treating physician and an employee of the Hospital, diagnosed Mr. Pickett with a kidney stone. After observing Mr. Pickett for approximately 12 hours, Dr. Darnell discharged him from the Hospital. Later that evening, Mr. Pickett's wife called 911 after finding him unconscious in their bathroom. When the ambulance arrived, Mr. Pickett was pale and unresponsive. The personnel on duty at the Hospital were unable to resuscitate Mr. Pickett, and he was pronounced dead at 8:20 p.m. An autopsy determined that he did not have a kidney stone but that a leaking abdominal aortic aneurysm had caused his death.

[¶4] On February 4, 2008, Appellant presented a notice of claim to the Hospital. The notice of claim was timely filed and satisfied all the requirements set forth in Wyo. Stat. Ann. § 1-39-113(b) as to the contents of a notice of governmental claim. The claim was also signed and sworn to under penalty of perjury in compliance with Article 16, § 7 of the Wyoming Constitution.

[¶5] On April 25, 2008, Appellant filed suit against the Hospital and Dr. Darnell within the two-year statute of limitations for a wrongful death action set forth in Wyo. Stat. Ann. § 1-38-102. Appellant's complaint stated that "[a]ll conditions precedent to the bringing of this action have been performed or have occurred, including the processing to completion of an application for review of claim before the Wyoming Medical Review Panel, and the presentation and filing of this claim to and with the Johnson County Hospital District." The Hospital and Dr. Darnell answered and asserted affirmative defenses. At that time, neither the Hospital nor Dr. Darnell claimed that ...


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