What Is a Fictitious Defendant?

Where You Need a Lawyer:

(This may not be the same place you live)

At No Cost! 

 What Is Personal Injury Law?

In personal injury claims, a plaintiff (i.e. the party that was injured) claims that they have sustained an injury due to an act or failure to act by the defendant (i.e. the individual alleged to have caused the injury). If the plaintiff is successful in their civil lawsuit, a court may award the plaintiff monetary damages for their personal injury.

In some cases, the events that form the basis of a personal injury claim may also form the basis of criminal charges. For example, a defendant may face a civil lawsuit for assaulting an individual, as well as face a criminal assault and battery charge.

Personal injuries can damage a plaintiff’s emotional health, physical health, or both. Mental health injuries often include claims of emotional pain and anguish sustained by the plaintiff as a result of the accident. Physical injuries include claims by the plaintiff regarding injuries that were made to their body, such as injuries to their bones, muscles, or other parts of their anatomy.

Importantly, the injuries sustained by a personal injury plaintiff do not need to manifest themselves instantly, as injuries may develop over time. There are several types of incidents which may form the basis of a personal injury claim, including:

Many personal injuries occur intentionally, such as when the defendant deliberately injures a victim, or intends to commit an act which they know will result in injury to another person. However, personal injuries may also occur unintentionally.

For example, if an unintentional injury is the result of someone else’s negligence, the plaintiff may file a civil lawsuit based on their negligent behavior. Automobile accidents, slip and fall accidents, and injuries sustained from medical malpractice are examples of the most common personal injuries caused by negligent behavior.

It is important to note that there are limits on the amount of time that a plaintiff has to commence a civil lawsuit against a defendant. This time limit is known as the statute of limitations and will depend on what the underlying cause of action is that caused the plaintiff’s injuries. A typical statute of limitations is two years from the date in which the accident occured.

However, there are cases in which a plaintiff is unaware of the exact party that caused their injuries. In these cases, the plaintiff may initiate their civil lawsuit against a fictitious defendant to ensure that they do not let the statute of limitations expire.

What Is a Fictitious Defendant?

In personal injury and tort law, a fictitious defendant is an unknown party that is named in a lawsuit as a result of the injured party not being able to properly identify the wrongdoer. Courts and plaintiffs will usually refer to a fictitious defendant as either John Doe or Jane Doe. Once again, fictitious defendants are often used when the plaintiff wishes to commence legal proceedings, but they cannot at the time, or before the expiration of the statute of limitations, readily identify the individual or individuals that they seek to hold liable for their injuries.

When a plaintiff includes a fictitious defendant in their lawsuit, they can later amend the original pleading once they learn the party that is allegedly responsible for their injuries. It is important to note that federal courts do not permit the use of fictitious defendants, and state laws concerning fictitious defendants will vary by state and jurisdiction.

When Is a Fictitious Defendant Necessary?

There are many reasons in which a plaintiff may choose to initiate a claim for damages involving a fictitious defendant. For example, one of the main reasons that fictitious defendants are used is that the plaintiff may be seeking to meet the relevant statute of limitations. Once again a statute of limitations is essentially the filing deadline for a case. Many personal injury claims, such as medical malpractice claims often have a short filing period.

For this reason many plaintiffs might initially name a fictitious defendant in their filing, until they later ascertain the parties responsible for their injury. As a defendant is required to be named in a lawsuit, utilizing a fictitious defendant allows a plaintiff to file the lawsuit before the actual party is able to be fully named.

Another reason to name a fictitious defendant is because identifying which party is actually at fault for the plaintiff’s injuries can be difficult. For example, in a medical malpractice claim, the hospital facility itself, as well as the doctors, nurses, or other third party hospital employees may have had contact with the patient who is suing for malpractice.

In some cases, the manufacturer of hospital equipment may even be liable for the plaintiff’s injuries. In most medical malpractice claims, the plaintiff will typically initiate the lawsuit against the facility and fictitious defendants, until they can later ascertain the exact actors that caused their injuries.

For instance, the plaintiff may initiate a civil lawsuit against Good Health Hospital and John Doe, but then later discover it was the Doctor that left a sponge inside their body which resulted in their injuries. Then the plaintiff could amend their original petition and fully name the Doctor in their lawsuit.

Typical plaintiff filings might include language such as, “There were numerous individuals that were in contact with the plaintiff, including Dr. John Doe. Dr. Doe was the plaintiff’s treating surgeon. Dr. Doe’s identity is not known at this time, despite the plaintiff’s best efforts at identifying the person, but will be later amended.” Fictitious defendants are especially common in personal injury matters involving joint liability where multiple persons may be liable.

How Is a Fictitious Defendant Identified?

Eventually, the plaintiff that initiated the lawsuit will need to actually identify the fictitious defendant(s). Typically, the identification of the correct named parties will happen during the discovery portion of the lawsuit. Discovery is the portion of the lawsuit in which the plaintiff sends requests for information to any party that may have information which could help the plaintiff identify the party responsible for their injuries.

For example, in a hit and run incident, the plaintiff may conduct discovery by asking a nearby gas station for their security surveillance information to use in identifying the vehicle that fled the scene. In a medical malpractice case, the plaintiff may request their medical records to figure out all of the names of the parties that had contact with them. The plaintiff will be required to work with diligent and deliberate speed in ascertaining the identity of any fictitious defendant. Failure to properly identify a defendant in the lawsuit will result in the case being dismissed.

On the other hand, if the party responsible for delaying the proper identification of the defendant is the defendant’s counsel, then the plaintiff will typically be allowed more time for discovery. For example, the defendant’s counsel may initially refuse to provide discovery information that might lead to identification of a fictitious defendant. Such delays cannot be held against the plaintiff, provided the plaintiff continues to make a good faith effort to ascertain the fictitious defendant’s identity. Once all defendants are properly named, the personal injury lawsuit can proceed against those parties.

Do I Need a Lawyer for Help with Personal Injury Issues?

As can be seen, naming fictitious defendants can sometimes create complications at the beginning of a lawsuit. Therefore, if you are unaware of the exact party responsible for your injuries, you should consult with an experienced personal injury lawyer.

An experienced personal injury attorney can ensure you meet the filing deadlines for your case, as well as help you ascertain the identity of the party or parties responsible for your injuries. Finally, an attorney can also represent you in court, as needed.

Law Library Disclaimer


16 people have successfully posted their cases

Find a Lawyer