Rel; November 9, 2023
`
`STATE OF ALABAMA - - JUDICIAL DEPARTMENT
`THE SUPREME COURT
`OCTOBER TERM, 2023 2024
`
`SC-2023-0077
`
`Mariette Harris v. Miles W. Ellis and Jack Hughston Memorial Hospital
`(Appeal from Russell Circuit Court; Cv-21-38)
`
`MITCHELL, Justice.
`
`AFFIRMED. NO OPINION.
`
`See Rule 53 (a) (1) and (a) (2) (F), Ala. R. App. P.
`
`Parker, C.J., and Shaw, Bryan, and Mendheim, JJ., concur.
`
`

`

`IN THE SUPREME COURT OF ALABAMA
`
`SC-2023-0077
`
`November 28, 2023
`
`Mariette Harris v. Miles W. Ellis and Jack Hughston Memorial Hospital
`(Appeal from Russell Circuit Court; CV-21-38).
`
`CERTIFICATE OF JUDGMENT
`
`WHEREAS, the appeal in the above -styled cause has been duly
`Submitted and considered by the Supreme Court of Alabama and the
`Judgment indicated below was entered in this cause on November 9,2023;
`
`Affirmed. No Opinion. Mitchell, J - - Parker C.J., and Shaw,
`Bryan, and Mendheim, JJ, concur.
`
`NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
`HEREBY ORDERED that this Court’s judgment in this cause is certified
`In this date. IT IS FURTHER ORDERED that unless otherwise ordered
`By this Court or agreed upon by the parties, the cost of this cause are
`Hereby taxed as provided by Rule 35, Ala R. App. P.
`
`I, Megan B, Rhodebeck, certify that this is the record of the judgment of the
`Court, witness my hand and seal,
`
`Megan B. Rhodebeck
`Clerk of Court,
`Supreme Court of Alabama
`
`APPENDIX J2L
`
`

`

`ELECTRONICALLY FILED
`12/21/2022 6;04 Am
`57-CV-2021- 000038.00
`CIRCUIT COURT OF
`RUSSELL COU NT Y, ALABAMA
`JUDY SELLERS, CLERK
`
`Case No. CV- 2021-000038.00
`
`DOCUMENT 144
`
`HARRIS MARIETTE,
`Plaintiff,
`
`V.
`
`MILES W. ELLIS M.D,
`JACK HUGHSTON MEMORIAL
`HOSPITAL,
`Defendants,
`
`ORDER
`
`MOTION TO VACATE OR MODIFY filed by HARRIS MARIETTE is hereby
`DENIED.
`DONE this 21st day of December, 2022.
`
`/s/ MICHAEL BELLAMY
`
`CIRCUIT JUDGE
`
`APPENDIX _A
`
`

`

`Document 99
`
`ELECTRONICALLY FILED
`10/14/2022 9;38 AM
`57-CV-2021-000038.00
`CIRCUIT COURT OF
`RUSSELL COUNTY, ALABAMA
`JUDY SELLERS, CLERK
`
`IN THE CIRCUIT COURT OF RUSSELL COUNTY, ALABAMA
`
`HARRIS, MARIETTE,
`Plaintiff,
`Case No. CV- 2021 - 000038.00
`V.
`
`MILES W. ELLIS M.D.
`JACK HUGHSTON MEMORIAL
`HOSPITAL,
`Defendants.
`
`ORDER
`
`MOTION TO DISMISS, OR IN THE ALTERNATIVE SUMMARY JUDGMENT
`filed by JACK HUGHSTON MEMORIAL HOSPITAL NOTED AND HAS BEEN
`SET FOR HEARINGDONE this 14th day of October, 2022.
`
`/s/ MICHAEL BELLAMY
`
`CIRCUIT JUDGE
`
`APPENDIX C
`
`

`

`DOCUMENT 102
`
`ELECTRONICALLY FILED
`10/14/2021-000038.00
`CIRCUIT COUNTY, ALABAMA
`JUDY SELLERS, CLERK
`
`IN THE CIRCUIT COURT OF RUSSELL COUNTY, ALABAMA
`
`HARRIS MARIETTE,
`Plaintiff,
`Case No. CV-2021-000038.00
`V.
`
`MILES W. ELLIS MD,
`JACK HUGHSTON MEMORIALHOSPITAL,
`Defendants.
`
`ORDER
`
`DEFENDANT MILES W. ELLIS, M.D. “S BRIEF IN SUPPORT OF MOTION TO
`DISMISS PLAINTIFF’S THIRD AMENDED COM filed by MILES W. ELLIS MD
`HAS BEEN SET FOR HEARING.
`
`DONE this 14th day of October, 2022.
`
`Is/ MICHAEL BELLAMY
`
`CIRCUIT JUDGE
`
`APPENDIX
`
`

`

`DOCUMENT 97
`
`ELECTRICALLY FILED
`10/14/2022 9;14AM
`57-CV-2021-000038.00
`CIRCUIT COURT OF
`RUSSELL COUNTY, ALABAMA
`JUDY SELLERS, CLERK
`
`IN THE CIRCUIT COURT OF RUSSELL COUNTY, ALABAMA
`
`HARRIS MARIETTE,
`Plaintiff,
`Case No. Cv-2021-000038.00
`V.
`
`MILESW. ELLIS MD,
`JACK HUGHSTON MEMORIAL
`HOSPITAL,
`Defendants.
`
`ORDER
`
`DEFENDANT MILES W. ELLIS, M.D. “S MOTION TO DISMISS PLAINTIFFS
`THIRD AMENDED COMPLAINT FOR DAMAGES filed by MILES MD is hereby
`SET FOR A HEARING ON ALL MOTIONS.
`
`The Court hereby sets this matter for a hearing on October 24, 2022 at 2'00 PM
`EST.,
`In courtroom 1.
`
`DONE this 14th day of October, 2022
`
`/s/ MICHAEL BELLAMY
`
`CIRCUIT JUDGE
`
`APPENDIX JEL
`
`

`

`DOCUMENT 48
`
`ELECTRONICALLY FILED
`6/8/2022 10;37 AM
`57-CV-2021-000038.00
`CIRCUIT COURT OF
`RUSSELL COUNTY, ALABAMA
`JUDY SELLERS, CLERK
`
`IN THE CIRCUIT COURT OF RUSSELL COUNTY, ALABAMA
`
`HARRIS MARIETTE,
`Plaintiff,
`
`V.
`
`MILES W. ELLIS MD,
`JACK HUGHSTON MEMORIAL
`HOSPITAL,
`Defendants.
`
`ORDER
`
`Case No. 2021-000038.00
`
`This matter was set this date on the Defendant’s Motion to Dismiss, The Court
`Head arguments of the parties and received documents regarding case law from the
`Plaintiff. The Court grants the Defendant’s ten (10) days to file any additional
`To the documents submitted by the Plaintiff. The Court takes this matter
`response
`under advisement until the Court reviews the additional information, documents,
`arguments and briefs submitted in this matter.
`
`DONE this 8th day of June, 2022.
`
`Is/ MICHAEL BELLAMY
`
`CIRCUIT JUDGE
`
`APPENDIX _V_
`
`

`

`DOCUMENT 17
`
`ELECTRONICALLY FILED
`4/18/2022 8;51 AM
`57-CV-2021-000038.00
`CIRCUIT COURT OF
`RUSSELL COUNTY, ALABAMA
`JUDY SELLERS, CLERK
`
`IN THE CIRCUIT OF RUSSELL COUNTY, ALABAMA
`
`HARRIS MARIETTE,
`Plaintiff,
`Case No. CV- 2021-000038.00
`V.
`
`MILES W. ELLIS MD,
`JACK HUGHSTON MEMORIAL
`HOSPITAL,
`Defendants.
`
`ORDER
`
`MOTION TO DISMISS PURSUANT TO RULE 12 (B) filed by MILES W. ELLIS
`MD is Hereby GRANTED.
`
`The Court hereby set this matter for a hearing on the motion to dismiss on May 19,
`2022 at 10;00 AM, EST.
`
`DONE this 18th day of April, 2022.
`
`Is/ MICHAEL BELLAMY
`
`CIRCUIT JUDGE
`
`APPENDIX
`
`

`

`DOCUMENT 104
`
`ELECTRONICALLY FILED
`1/10/2022 10;54 AM
`57-CV-2021-000038.00
`CIRCUIT COURT OF
`RUSSELL COUNTY, ALABAMA
`JUDY SELLERS, CLERK
`
`IN THE CIRCUIT OF RUSSELL COUNTY, ALABAMA
`
`HARRIS MARIETTE,
`Plaintiff,
`
`V.
`
`MILES W. ELLIS MD,
`JACK HUGHSTON MEMORIAL
`HOSPITAL,
`Defendants.
`
`ORDER
`
`Case No. CV-2021-000038.00
`
`The Court having reviewed and considered the Motion to Dismiss filed by the
`Defendants, the response of the plaintiff, the arguments and authorities presented
`by the attorneys, after considering all of the matters presented; The Court finds
`that the Petition filed against the defendants was filed after the Statute of
`limitations had run. It is therefore Ordered that said Motion to Dismiss is Granted
`and the Court Orders this matter Dismissed.
`
`Done this 10th day of November, 2022.
`
`Is/ MICHAEL BELLAMY
`
`CIRCUIT JUDGE
`
`APPENDIX _V4
`
`

`

`INDEX TO REPORTS’S TRANSCRIPT
`
`Index
`
`Motion to Dismiss Hearing (June 8, 2022)
`
`Motion to Dismiss Hearing (October 24, 2022)
`
`Reporter’s Certificate
`
`V
`
`1
`
`2-23
`
`24-39
`
`40
`
`APPENDIX _X_
`
`

`

`STATE OF ALABAMA
`
`IN THE CIRCUIT COURT FOR THE COUNTY OF RUSSEL
`
`TWENTY - SIXTH JUDICIAL CIRCUIT
`
`CIVIL
`
`MARIETTE HARRIS,
`
`Plaintiff,
`V.
`
`MILES W. ELLIS, M.D. ;
`JACK HUGHSTON MEMORIAL
`HOSPITAL,
`Defendants.
`
`Case No. CV 21- 38
`
`REPORTER’S OFFICIAL TRANSCRIPT
`
`Honorable Michael J. Bellamy
`Phenix City Alabama - June 8,2022
`
`Before:
`APPEARANCES:
`For the Plaintiff:
`Pro se
`For Defendant Miles W. Ellis, M.D;
`Eric D. Hoaglind, Esq.
`Vestavia Hills, Alabama
`For Defendant Jack Hughston
`Memorial Hospital:
`David W. Proctor, Esq,
`Birmingham, Alabama
`
`!
`
`

`

`The COURT: This is the matter of Mariette Harris versus Miles Ellis, M.D., Dr.
`Ellis, M.D., And others. Case Number is cv2021-38. The Plaintiff is represented by
`Mrs. Harris; is that right?
`
`Ms. Harris; Yes, sir.
`
`The COURT; Mariette Harris is here?
`
`Ms. Harris; Yes, sir.
`
`THE COURT; You’re representing - - and who is that with you?
`
`Ms. Harris; That’s my daughter.
`
`The COURT; Your daughter. And representing The Defendants are who, please,
`counsel?
`
`MR. HOAGLUND; Eric Hoaglund for Dr. Ellis.
`
`MR. PROCTOR; and David Proctor for Jack Hughston Memorial Hospital.
`
`THE COURT: This matter is set for a hearing on the Motion To dismiss at this
`point in time, and I’m going to hear only the issues in regards to the motion to
`dismiss. Are you ready at this time? You may proceed.
`
`MR. PROCTOR; Thank you, Judge. Mr. Hoaglund and I have the same grounds for
`our motion, so if you look at the complaint which was filed by Ms. Harris on
`December 14, 2021, she’s claiming that there was either a misdiagnosis or a failure
`to diagnose.
`
`THE COURT: The date is December 14th when again, please?
`
`MR. PROCTOR; Yeah. The date of filing was December 14, 2021, And the complaint
`focused on her admission to the emergency room And hospital on November 11,
`2019, and it’s essentially, judge, a failure or failure to diagnose or negligent
`diagnosis of a problem that she said If it had been correctly diagnosed, she would
`
`

`

`have not suffered the injury that she did. And so then in Alabama, as you know,
`there is two-- year statute of limitations under the Alabama Medical Liability Act
`from the date of service of care, and that two years would have expired on or about
`November 11 of 2021, and the complaint was filed 33 days after that.
`
`Just for the record, there were one or two amendments filed to the complaint,
`But those just increased the damages sought in the complaint. They did not
`Change any of the gravamen of the complaint, vis- a -vis essential claims,
`If you will, so on that basis we submit that just on the pleading themselves,
`It's clear that the filing was outside of the statute and the case is due to
`be dismissed is our position judge.
`
`THE COURT: And that’s the same argument you would make also; is that correct?
`
`MR. HOAGLUND; Yes, sir, same argument. They’re just ALMA Claims against the
`doctor, and the two- year statute of limitations, and the alleged malpractice based
`upon the complaints occurred more than two years prior to the filing of the suit.
`
`THE COURT; Okay. Ms. Harris, it’s your time, please.
`
`MS. HARRIS; Yes. The statute also states that discovery - - when the discovery
`happened, and I had another heart attack September the 18th, 2021. I went to St.
`Francis Hospital and They found out that I had Cardiomyopathy, and I have proof
`from them what they stated.
`
`THE COURT: And you’re saying you only discovered it when? When did you
`discover that At St. Francis?
`
`MS. HARRIS; Yes, September 18th, 2021.
`
`THE COURT: Do you have - - what documentation do you have in regards to that?
`Would you show it to counsel before you present it to the Court?
`
`MS. HARRIS: Excuse me?
`
`

`

`The COURT: show it to the defense attorneys Before you show it to me. They have a
`right to review what you have that you’re trying to submit.
`
`MR. PROTOR; Judge, would you, if you don’t mind, just ask her to repeat the date
`that she says - -
`
`THE COURT: She says September 18th, 2021, Is when she - - is that the date you
`said, Ms. Harris?
`
`MS. HARRIS; Yes, sir.
`
`THE COURT; Yes, ma’am.
`
`(Brief pause.)
`
`MS. HARRIS: May I also add, Judge, - -
`
`THE COURT; Let them finish.
`
`MS. HARRIS; Yes, sir
`
`THE COURT; Yeah, just one moment. I’m looking to see if you’ve mentioned that
`in your last amended complaint. You didn’t change the date in your complaint. I’m
`trying to look at all of them. Just a moment.
`
`(Brief pause.)
`
`THE COURT; It still refers to same date . The last amended complaint that you
`filed still refers to the date of November the 21st.
`
`MR. PROCTOR; Right. Judge, if I may, the visits that she had to Jack Hughston
`Memorial Hospital and treatment by Ellis were all in November of 2019, The one,
`though, that is mentioned in the complaint is the visit on November 11th, but even
`if you take the most recent visit at Jack Hughston, and Dr. Ellis was November
`23rd of 2019, the complaint’s still barred.
`
`

`

`THE COURT; She say as far as discovery, it was discovered on September 18th,
`the document, I assume, you’re looking at. Does it indicate that there was
`something that was done then that would reflect back to the November 11th
`treatment? I don’t know. I’ve not seen it.
`
`MR. PROCTOR; Well, I’m looking at one page of a medical record. If you give me a
`minute, I’ll just look at it real quick.
`
`(Brief pause.)
`
`THE COURT: while you’re looking at it, I’ll let her continue her argument. Your
`argument regarding the law says what, Please?
`
`MS. HARRIS: It says discovery - - the date of discovery of the injury, even though it
`still is the injury of 2019, still preexists in 2021 and so on, sir.
`
`THE COURT: And the document you gave him, What does it purport to say?
`
`MS. HARRIS: It purports to say as of November of 2019, I have had
`Cardiomyopathy
`
`MR. PROCTOR; I don’t see that on this, Judge. I’m going to hand it back to her and
`maybe she can point it out. I see handwritten note. I don’t know whose that is, but
`the medical record doesn’t say that.
`
`MS. HARRIS; It says right here.
`
`THE COURT; is that a medical record from St. Francis ?
`
`MS. HARRIS; Yes sir
`
`THE COURT; who was the treating physician there
`
`MS. HARRIS; Dr. Patel. I had three Doctors; Dr. Patel, Dr. Montalvo, Michelle
`Montalvo, and another Patel. And I also have this in recording
`
`

`

`THE COURT; Well, read the portion you say That say the - -
`
`MS. HARRIS; it say has continued to have on and off chest pain this time and has
`been fixated on the pulmonary embolism as the primary etiology and a delayed
`diagnosis, Which of (sic) told her that she needs to take it up with the emergency
`room, but at this I do not see any long - - term consequences and ability
`cardiomyopathy was directly related to that. Admitted again over the weekend with
`chest pain. So far, acute coronary syndrome has been ruled out. She also thinks the
`Carvedilol is causing her chest pain, which it was because he changed it.
`
`MR. PROCTOR; Judge, can I just speak to that real quick - -
`
`THE COURT; Yes.
`
`MR. PROCTOR;
`- - without having the benefit of studied this or any records
`Before or after? Judge, what I was going to say, this is David Proctor for the
`Hospital, is that medical malpractice case are not like types of fraud cases
`Where there can be a discovery tolling of the fraud, and it’s clear from under
`The act and the case determining statute of limitations that it’s two years from
`The act of the alleged negligence, so what Ms. Harris is saying, her
`interpretation of that record from 2021 is related back to what she claims to be the
`act of was in November of 2019.
`
`THE COURT; Right.
`
`MR. PROCTOR: That complaint was due to have been filed within two years,
`And it wasn’t.
`
`THE COURT; of the time of the treatment.
`
`MR. PROCTOR; And that’s what we’re here today about, Your Honor.
`
`MR. HOAGLUND; And, Your Honor, the face of the complaint, it alleges the
`November ‘19 - -
`
`THE COURT; Even the amended complaints only allege November ‘19 - - ‘21 - - ‘19.
`
`

`

`MR. HOAGLUND; Yes, sir. So just based upon the face of the complaint itself,
`which is what we have to consider, the statute of limitations has run.
`
`THE COURT; Okay. Your time again?
`
`Ms. HARRIS: I feel like discovery is the truth, hello.
`
`THE COURT; It’s to me, please, ma’am.
`
`Ms. HARRIS; Oh. I’m sick because of you. I have it right here in the doctor’s notes
`He misdiagnosed me, then turned around and gave me a treatment called
`Carvedilol, which induced heart failure. Do you need to see it?
`
`THE COURT; NO, no, no, no, it’s not to them, ma’am. It’s to me as whether or not
`the case is to proceed again. Okay?
`
`MS. HARRIS; Okay. So, what do I do with this?
`
`THE COURT; No, continue your argument. It’s a matter of whether I grant or deny
`the motion to dismiss.
`
`Ms. HARRIS; Okay. So abnormal EkG, sir and he puts on there - -
`
`THE COURT: You indicated to me when i asked you, you said it reverts back to the
`date of the misdiagnosis, which was November 11,2021?
`
`MS. HARRIS: Yes, sir and these are the notes.
`
`MR. PROCTOR; 2019.
`
`THE COURT; 2019, I’m sorry.
`
`MS. HARRIS; 2019. And these are the notes - - these are doctors’ notes for 2019.
`
`

`

`THE COURT; Well, the question, though, is you say you didn’t discover it - - -
`what made you discover it in 2021? When was that ?
`
`MS. HARRIS: all three of the doctors, when they came in my room and - -
`
`THE COURT: what do you have from them saying that it occurred in - -
`
`MS. HARRIS: That’s what I just read to you. I just read to you the etiology.
`
`THE COURT: The page you have?
`
`MS. HARRIS: Yeah. The page, yeah.
`
`THE COURT: May I look at that page, please? You may approach and bring it to
`me. Deputy.
`
`(Deputy complies.)
`
`THE COURT; You may go ahead. I’m listening.
`
`MS. HARRIS: Your Honor, I also have it on tape to prove that's what’s on here and
`much, much more; all the doctors that I've been seeing. I have even had second
`opinions.
`
`THE COURT; Just one moment. I’ll be right back.
`
`(Brief pause.)
`
`THE COURT: Ma’ am, here’s your copy back. I made you a copy also, counsel. Is
`there anything else you wish to state to The Court at this time?
`
`MS. HARRIS; Yes, sir.
`
`THE COURT: Yes, ma’am.
`
`

`

`MS. HARRIS: I also have the doctor’s notes when he misdiagnosed me on November
`the 11th, 2019. And for the abnormal EKG, he states probably left ventricular
`hypertrophy. So left Ventricular hypertrophy is called LVH, increases the risk of
`sudden cardiac death six to Eight - fold in men and three in women. In
`Patients with definite electro cardio ECG, evidence of LVH, there is a 59 percent
`overall Mortality at 12 years, and he ignored it Not only that, he also ignored - -
`
`THE COURT: Before you go into that as to what he didn’t do at that point, what
`other documentation do you have showing that it was only discovered, other than
`this document you just submitted that it was discovered on that date?
`
`MS. HARRIS; Just - - that’s the only.
`
`THE COURT: That’s the only thing? Okay. Well, that’s the issue today we have
`before the Court. What is that, please, ma’am?
`
`MS. HARRIS: You will hear them actually say the things that they said. I recorded
`it, everything that’s going on with me.
`
`THE COURT: Did you understand what the purpose of this hearing was today? You
`did receive this copy of thief motion that they were saying it was not done within
`the two -year period from the time the incident occurred. Do you understand that?
`
`MS. Harris; Yes, sir.
`
`THE COURT: And that if, in fact, the statute says its two years from the date of
`occurrence and you’re saying from discovery?
`
`MS. HARRIS; Yes, sir.
`
`THE COURT: And I’ve not looked at the statute recently, but I’ve looked at the brief
`That they’ve submitted to me. If there’s anything else you want to submit to
`me as
`far as the law, I’ll be glad to look at that, but I’m going to look at the documents
`that I have and the brief they’ve submitted. I’m not going to make a ruling
`immediately today.
`
`

`

`MS. HARRIS; Yes, sir.
`
`THE COURT: is there anything you want to submit to me as far as the law?
`
`MS. HARRIS; As far as the law?
`
`THE COURT; Yes, ma’am.
`
`MS. HARRIS; Okay. The general federal rule is that the statute of limitations does
`not begin to run until the facts which would support a cause of action are apparent
`or should be apparent to a person with a reasonably prudent regards for his rights.
`Rozar v. versus, Mullins, 85 F.3d 556, 561, 11th Circuit court 1996. See also Porter
`v. Ray, 461 F. 3d 1315, 1323, 11th Circuit court 2006. Therefore, a section 1983
`Claim occurs when the plaintiff knows or has reason to know of the injury that is
`the basis of her claim.
`
`THE COURT; What kind of case was that, please, ma’am, you just cited?
`
`MS. HARRIS; Mullins and Porter.
`
`THE COURT: what was the nature of the case?
`
`MS. HARRIS; Statute of limitations period.
`
`THE COURT: But it was involving something that occurred. What was the nature
`of the - -
`
`MS. HARRIS; Oh, negligence, sir.
`
`THE COURT; Negligence, in regards to what? Was it a medical malpractice or
`what?
`
`MS. HARRIS; Medical malpractice, sir.
`
`THE COURT: Do you have a copy of the case also?
`
`

`

`MS. HARRIS; Just this.
`
`THE COURT; Oh, you just have the - - just the documentation from that? Okay. I’ll
`take that is a submission for you also. I’ll make a copy of that also. Is there
`anything else you’d like to say?
`
`MS. HARRIS: Yeah, it also says the injury may have occurred weeks, months, or
`possibly years before the harm and cause of harm are discovered. The clock starts
`when the harm is detected.
`
`THE COURT; Okay. It’s what now? I’m sorry, I was reading this one. I apologize.
`
`MS. HARRIS; Oh, that’s Okay, sir. I said for - - it says, for example, in a case of
`medical malpractice, the injury may have occurred weeks, months, or possibly years
`before the harm and cause of harm are discovered. The clock starts when the harm
`is detected.
`
`THE COURT; All right. Let me have that one too, counsel, I mean, officer.
`
`(Deputy complies.)
`
`MS. HARRIS: There’s also in NSW, you must bring a medical negligence claim
`within either three years from when you discovered that the medical negligence
`occurred.
`
`THE COURT: I’m sorry, go ahead.
`
`MS. HARRIS; Three years from the date of knowledge.
`
`THE COURT; Three years what now? The statute would run for three years from
`the date of knowledge?
`
`MS. HARRIS: It says in NSW, you must bring a medical negligence claim within
`either three years from when you discovered that the medical negligence occurred,
`and then it also says three years from the date of knowledge.
`
`

`

`THE COURT; Okay. You give her that also. Anything else?
`
`MS. HARRIS; All actions against physicians, surgeons, dentists, medical
`institutions or other health care providers for liability, error, mistake, or tort, must
`be commerce (sic) - -
`
`THE COURT; Commenced.
`
`MS.HARRIS;
`- - commenced within six months from the date of such discovery or
`the date of discovery of facts.
`
`THE COURT; stop right there. Let me ask you do this. Six months from discovery,
`and you discovered it, again, according to what you just submitted to me today, on
`September - -
`
`MS. HARRIS; 18th.
`
`THE COURT; - - 18th, ‘21. And you filed this lawsuit when ?
`
`MS. HARRIS; I filed it on November - - no, December. I filed it on December, - -
`
`THE COURT; of when?
`
`MS. HARRIS; - - the reason being is because I had - -
`
`THE COURT; December, when, 2ooo, what, ‘21?
`
`MS. HARRIS; Yes sir.
`
`THE COURT; Okay.
`
`THE COURT; That’s fine.
`
`MS. HARRIS: I would have did it earlier, but i couldn’t because I had to get a
`
`

`

`Heart Cath Did, and I had told him I’m doing this arm. This is my writing arm, so I
`had to wait. I couldn’t even lift a jug of milk.
`
`THE COURT; Okay. Any other law you want to submit to the court?
`
`MS. HARRIS: it says whichever earlier, Alabama code S5-6-5, I mean, Alabama
`code 5- -S6-5-482 (a).
`
`THE COURT; And let her have that one. I’ll copies of those. She’ll bring them right
`back to you in just a moment. They’re the moving party. They have the right to have
`the last say at this point on this issue. You may submit again.
`
`THE DEPUTY; Are we done?
`
`THE COURT: That’s all the documents she has, yes. Thank you. Make two copies, if
`you would. Go ahead.
`
`MR. PROCTOR: Judge, I tried to keep up with the case she’s relying on.
`
`THE COURT; Right. I’m going to make a copy for you.
`
`MR. PROCTOR; I know one of them was a 1983 case, which is a federal claim for a
`negligent search or have something to do with law enforcement. That’s not
`applicable here. The Alabama Medical Liability Act unquestionably controls, and it
`states very clearly that the case must be brought within two years of the act or
`omission or failure giving rise to the claim. And what i would ask the
`Court to do is look at her complaint, her original complaint, which was filed on
`December 17, 2021.She clearly alleges that Dr. Ellis and the hospital committed
`medical negligence, and she clearly states that she knew she was injured because
`she says Plaintiff sustained irreparable injury to her heart and caused her to
`sustain personal injuries by the failure to discover that she’s injured. It wasn’t
`something that was just laying latent and she didn’t discover she was injured until
`sometime in ‘21. She claims that she knew this from this treatment, which is the
`only treatment mentioned in the complaint, and that treatment was more than two
`years prior to filing the complaint, and so we would submit what the court’s
`required to do is to just look at the four corners of the complaint. That document
`
`

`

`clearly states that her injury is related to medical negligence that her injury is
`related to medical negligence that allegedly occurred on - -
`
`THE COURT: The Court would also note for the record that none of the amended
`complaints indicated anything other than the same dates you just indicated.
`
`MR. PORTER; They do not. They just raise the addendum up to 25 million dollars.
`
`THE COURT; Correct.
`
`MR. PORTER: so we would just submit, Your Honor, - -
`
`THE COURT: You’ve submitted a brief also, I’ll note.
`
`MR. PORTER: It is. That’s about all. Do you have anything else?
`
`THE COURT; Yes, ma’am?
`
`MS. HARRIS; Okay, so, he’s trying to say - -
`
`THE COURT: He said the same thing the whole time, that it’s not within the two - -
`year statute of limitations. That’s all he said, basically, the essence of it. And you
`submitted some things that I will look at, and I’ll take this matter under
`advisement and I’ll issue an order as soon as i can. Okay?
`
`MS. HARRIS; Yes sir.
`
`THE COURT: And you all may be excused. I certainly appreciate it, and i’ll be doing
`my reading. Okay?
`
`MR. PORTER; Thank you, Judge.
`
`THE COURT; Thank you so much. Y’all have safe travels.
`
`MR. PORTER; Judge, can I ask you a quick question?
`
`

`

`THE COURT; Yes.
`
`MR. PORTER: Given some of the material that we’ve just been handed by
`Plaintiff counsel, if there’s any additional legal briefing, would you entertain a
`supplemental?
`
`THE COURT: if you wish to submit anything since she just submitted it to you,
`I’ll give you - - how long you need to issue or file something additionally?
`
`MR. PORTER; A week.
`
`THE COURT: Let’s give you 10 days. What I’m doing is, I’m giving them 10 days, so
`it will be after I receive those documents. You have a right to file a response to that
`in writing. I won’t necessarily have to have a hearing. You submitted these laws
`and these statutes to me, I mean cases, and I’ll review those. He’s going to review
`them and he’s going to file a response to that. Okay? I would also encourage you, if
`you would, try and seek an attorney to assist you in this matter. Okay? Thank you.
`I’ll note that for the record then.
`
`MR. HOAGLUND; Judge, can i compare what we’ve got to your record to make sure
`that we’ve got - -
`
`THE COURT; You may.
`
`MR. HOAGLUND; Thank you.
`
`(Brief pause.)
`
`MR. HOAGLUND.; Thank you, Judge. L Appreciate it.
`
`THE .COURT; You’re welcome. Thank you. This concludes the hearing in this
`matter.
`
`(End of proceedings)
`
`

`

`STATE OF ALABAMA
`
`IN THE CIRCUIT COURT FOR THE COUNTY OF RUSSELL
`
`TWENTY - SIXTH JUDICIAL CIRCUIT
`
`CIVIL
`
`Case No. CV 21 - 38
`
`MARIETTE HARRIS,
`
`Plaintiff,
`
`V.
`
`MILES W. ELLIS, M.D. ;
`JACK HUGHSTON MEMORIAL
`HOSPITAL,
`Defendants.
`
`REPORTER’S OFFICIAL TRANSCRIPT
`
`Before
`For the Plaintiff;
`Jamiee E.Hunter, Esq.
`Birmingham, Alabama
`
`For Defendant Miles W. Ellis, M.D.;
`Eric D. Hoaglund, Esq.
`Vestavia Hills, Alabama
`For Defendant Jack Hughston
`Memorial Hospital;
`David W. Proctor, Esq
`Birmingham, Alabama
`
`

`

`THE COURT: This is in the matter of Mariette Harris versus Miles W. Ellis, M.D.
`and Jack Hughston Memorial Hospital, Defendants Case Number is CV 2021- 38.
`This is a hearing on all the motions to dismiss the third party amended complaint
`and all the others, representing the Plaintiff is Ms., what’s your name again,
`please?
`
`MS. HUNTER; Jamiee Hunter.
`
`THE COURT; Ms. Hunter. And representing Dr. Ellis is who ?
`
`MR. HOAGLUND; Eric Hoaglund, Your Honor.
`
`THE COURT; And representing the hospital?
`
`MR. PROCTOR; David Proctor.
`
`THE COURT; Are all parties ready to proceed at this time?
`
`MS. HUNTER; Yes, Your Honor.
`
`MR. HOAGLUND: Yes, sir.
`
`THE COURT; Let us proceed. Defendants, you may.
`
`MR. HOAGLUND; Your Honor, Eric Hoaglund representing Dr. Ellis. As you know.
`This is the Plaintiffs third amended complaint. We have filed motion to dismiss as
`to the original and the first and the second amended complaint. The Court granted
`the Plaintiffs motion for leave to file a third amended complaint, which the
`Plaintiff did, and we’re now here on the same issues regarding motion to dismiss.
`It’s, basically, a statute of limitations argument. We’ve made this argument in the
`previous briefs on the first three complaints, now we’re here on what is, essentially,
`the fourth complaint arguing the exact same issues based upon the statute of
`limitations. As the Court knows, the Plaintiffs claim is a claim under the Alabama
`Medical Liability Act, which is subject to a two - year statute of limitations. The
`Plaintiffs third amended complaint clearly states that the plaintiff is alleging that
`she was misdiagnosed on the multiple occasions between November 11th, 2019, and
`
`

`

`November 26th, 2019, these misdiagnoses led to Dr. Ellis’s administration of a
`particular drug which then resulted in the plaintiffs injury. The complaint
`specifically states of the facts that on November 11th, the plaintiff was treated at
`Jack Hughston Hospital by Dr. Ellis. The complaint specifically alleges that there
`was a misdiagnosis on that November 11th, 2019 date, that she was misdiagnosed,
`and that a — - well, she was improperly administered drugs at that time which
`resulted in her injury on that date. In addition, the complaint clearly shows that
`on
`November the 18th, the Plaintiff once again entered Jack Hughston Hospital. She
`had an echocardiogram. She was informed by Dr. Patel that time that she had
`congestive heart failure and had an ejection fraction of 20 to 25 percent.
`She was once again released on November 22nd and returned on November 26th,
`2019 to Jack Hughston Hospital, which she was diagnosed at that time with an
`enlarged heart and Pulmonary edema. The Plaintiff did not file suit until December
`14th, 2021, over two years later. It’s clear from the complaint that there are a
`number of allegations of misdiagnoses between November 11th and November 26th
`that trigger the statute of limitations, we cite in our brief for you, Your Honor,
`several cases, but, specifically, the Mobile infirmary case, in Alabama in which,
`the Plaintiff developed a pressure ulcer, later had to have his leg amputated.
`The Alabama Supreme Court states that the statute of limitations began to run at
`the time of the pressure ulcer, at the time of the first injury, which is the same
`situation that we have here. The time of the first injury is clearly based upon the
`complaint between November 11th and November 26th, 2019, more than two years
`before the filing of the complaint. We think that on its face the complaint Is due to
`be dismissed based upon the statute of limitations and based upon the case law
`we’ve cited.
`
`The COURT: And I’ll let the hospital representative, if he wishes, to add anything
`at this time.
`
`MR. PROCTOR: Your Honor, unless you’ve got any specific questions, I don’t have
`anything to add. I think counsel covered it. You know, I could see how this could be,
`you know, the idea that there was a misdiagnosis and an injury pled in the
`complaint, all be it a smaller injury than what she says occurred in 2021, but an
`injury nonetheless, and the law is clear that it’s from the date of the alleged
`negligence and the first injury the statute begins to run. There’s no tolling because
`of a first injury developing into a more significant injury down the road. That does
`
`

`

`not toll the statute, and there are no cases, to our knowledge, that would allow that,
`your Honor.
`
`THE COURT; Thank you, Ms. Hunter, your Turn?
`
`MS. HUNTER; Your Honor, I want to first start out saying our argument is no
`different from what it was before, and I know opposing counsel gave a brief synopsis
`on the Mobile case, which is, ironically, the same case that we are using as well.
`And just to give you just an idea of what that case entails, the Defendant in that
`case, the Mobile case, he actually had an injury at home, totally different injury,
`and then he arrived at the hospital or the facility and he developed a different
`Injury, He tried to claim that new injury at the hospital, which was the ulcer as well
`As his leg amputation, and then the court basically concluded that the injury that
`The injury that was leg amputation, which was the subsequent increase of that
`injury, this case is totally different. In this case, Ms. Harris actually walked into the
`hospital on the 11th, the 18th, and the 26th, and 30. She comp lined of the
`ame
`injuries. It was Shortness of breth, chest pains, pressure in her chest, and due to
`that, an ECG was done. The readings of the ECG were clear, but the defendants
`actually misdiagnosed, and as a consequence, obviously, she was left untreated. I
`think the most practical question that I feel the court must ask is, Did Ms. Harris
`have a legal cause of action on the 11th and the 18th and the 26th, meaning that on
`that day could she have filed a complaint, and I believe he
`answer is no,
`unfortunately, because she would have misstated a claim. She didn’t have an injury.
`I do know that under the medical malpractice laws In the State of Alabama, a
`misdiagnosis alone is not sufficient for an actual injury. Man