Deleo v. Mid-Towne Home Infusion Inc.

Plaintiffs were not entitled to add two defendants to their malpractice suit after expiration of the statute of limitations because they could not show that they were mistaken about the defendants' identity.

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Less than a week before the expiration of the statute of limitations for medical malpractice, Wendy A. Deleo and Dominick R. Deleo brought claims for medical malpractice and loss of consortium respectively against Philip S. Brachman, M.D., and Mid-Towne Home Infusion, Inc. “Mid-Towne”. More than a year and a half later, the Deleos filed a motion to add two other defendants, Joseph Chapman and Anthony Cornelius. Chapman and Cornelius, both registered nurses, were the Mid-Towne employees who had allegedly provided negligent care to Wendy Deleo. The trial court refused to allow Chapman and Cornelius to be added to the suit and denied the Deleos’ motion. Reconsideration of the same motion was subsequently denied.1 The lawsuit proceeded to trial and resulted in a defense verdict for Dr. Brachman but a judgment against Mid-Towne for $175,000. In this appeal, the Deleos assert that the trial court abused its discretion in refusing to permit them to add these defendants. After reviewing the record, we find otherwise and affirm.

The underlying medical malpractice case arose after Wendy Deleo had hip revision surgery in August 1994 and developed an infection. Dr. Brachman, an infectious disease consultant, recommended an aggressive intravenous antibiotic regimen to treat the infection. To continue the regimen after her release from the hospital, Mid-Towne provided in-home nursing care to deliver medication and to monitor her for adverse reactions. Deleo complained to Cornelius about excessive dizziness, a symptom suggesting possible ototoxicity, indicative of gentamicin poisoning. As a result of the ototoxicity Wendy Deleo suffered irreversible damage to her inner ear, causing permanent vertigo.

Deleo v. Mid-Towne Home Infusion Inc.

Plaintiffs were not entitled to add two defendants to their malpractice suit after expiration of the statute of limitations because they could not show that they were mistaken about the defendants' identity.

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