Fictitious defendants
Encyclopedia
Fictitious defendants are real persons a plaintiff
believes it has a cause of action
against in a lawsuit who, for one reason or another, cannot be identified by the plaintiff before a lawsuit
is commenced. As the statute of limitations
for many torts such as medical malpractice
is generally very short, plaintiffs under pressure to issue an originating process such as a statement of claim often use contrived names in the title of proceedings (most commonly "John Doe
" or "Jane Doe") and identify the person's role in the lawsuit in the body of the pleading. Generally, this tactic preserves the limitation period and, with leave of the court, the plaintiff can later substitute the real name of the defendant once it is learned during the discovery
process.
For example, in a medical malpractice case, the plaintiff may have been treated by doctors
and nurses he or she may have seen, but did not know the names of at the time. This is particularly true of plaintiffs who may have been unconscious during long periods of their treatment. At the beginning of the lawsuit, it may be impossible to determine which medical professional was negligent, so all persons who treated the plaintiff must be sued. However, the hospital records available to the plaintiff may be limited or unintelligible, and the hospital that does have the records may refuse to release them unless litigation is pending.
Typically, the plaintiff will plead as follows:
In the case of John Smith vs. Jones Memorial Hospital and Dr. John Doe.
Once the originating pleading is issued, the plaintiff is usually required to work with all deliberate speed to determine the names of the fictitious defendants through discovery of the defendants it is aware of. If the plaintiff delays too long, the court generally will not allow amendment of the claim to substitute the names of the appropriate party, and any valid claims against those defendants may become statute barred
. However, the plaintiff may not, through the action of the fictitious defendants or the other defendants to the lawsuit, be prejudiced by any delay caused by obstruction or refusal to reveal the identities of the fictitious witnesses.
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
believes it has a cause of action
Cause of action
In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit...
against in a lawsuit who, for one reason or another, cannot be identified by the plaintiff before a lawsuit
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
is commenced. As the statute of limitations
Statute of limitations
A statute of limitations is an enactment in a common law legal system that sets the maximum time after an event that legal proceedings based on that event may be initiated...
for many torts such as medical malpractice
Medical malpractice
Medical malpractice is professional negligence by act or omission by a health care provider in which the treatment provided falls below the accepted standard of practice in the medical community and causes injury or death to the patient, with most cases involving medical error. Standards and...
is generally very short, plaintiffs under pressure to issue an originating process such as a statement of claim often use contrived names in the title of proceedings (most commonly "John Doe
John Doe
The name "John Doe" is used as a placeholder name in a legal action, case or discussion for a male party, whose true identity is unknown or must be withheld for legal reasons. The name is also used to refer to a male corpse or hospital patient whose identity is unknown...
" or "Jane Doe") and identify the person's role in the lawsuit in the body of the pleading. Generally, this tactic preserves the limitation period and, with leave of the court, the plaintiff can later substitute the real name of the defendant once it is learned during the discovery
Discovery (law)
In U.S.law, discovery is the pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for...
process.
For example, in a medical malpractice case, the plaintiff may have been treated by doctors
Physician
A physician is a health care provider who practices the profession of medicine, which is concerned with promoting, maintaining or restoring human health through the study, diagnosis, and treatment of disease, injury and other physical and mental impairments...
and nurses he or she may have seen, but did not know the names of at the time. This is particularly true of plaintiffs who may have been unconscious during long periods of their treatment. At the beginning of the lawsuit, it may be impossible to determine which medical professional was negligent, so all persons who treated the plaintiff must be sued. However, the hospital records available to the plaintiff may be limited or unintelligible, and the hospital that does have the records may refuse to release them unless litigation is pending.
Typically, the plaintiff will plead as follows:
In the case of John Smith vs. Jones Memorial Hospital and Dr. John Doe.
- Jones Memorial Hospital is a hospital in the city of Anytown, USAPlaceholder namePlaceholder names are words that can refer to objects or people whose names are either temporarily forgotten, irrelevant, or unknown in the context in which they are being discussed...
. - Dr. John Doe is a doctor employed by Jones Memorial, and at all relevant times was the plaintiff's treating physician. The identity of the treating physician is unknown to the plaintiff despite the plaintiff's best efforts to identify the doctor.
Once the originating pleading is issued, the plaintiff is usually required to work with all deliberate speed to determine the names of the fictitious defendants through discovery of the defendants it is aware of. If the plaintiff delays too long, the court generally will not allow amendment of the claim to substitute the names of the appropriate party, and any valid claims against those defendants may become statute barred
Statute of limitations
A statute of limitations is an enactment in a common law legal system that sets the maximum time after an event that legal proceedings based on that event may be initiated...
. However, the plaintiff may not, through the action of the fictitious defendants or the other defendants to the lawsuit, be prejudiced by any delay caused by obstruction or refusal to reveal the identities of the fictitious witnesses.