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Defense Tries To Bar Medical Malpractice Victims

In medical malpractice cases, victims must serve a report from an expert upon the health care provider within 120 days after they sue that provider. If this is not perfectly complied with, courts dismiss the case "with prejudice" (meaning that the case can never be filed again). The requirements of the expert report, and the timeliness of it, have been very strictly construed by courts, and they have thrown out the cases of many victims without letting them have their day in court. For instance, in one case the doctor avoided service of the lawsuit papers for more than 120 days after suit was filed; the court then threw out the case because the doctor had not been served with the expert report within the first 120 days.

Recently, the defense tried another extreme tactic. In a San Antonio case, within 120 days after filing suit the victims properly filed their expert report. Later, they added as a defendant a different health care provider who had not been sued in that case before, and they filed an expert report regarding that new defendant within 120 days after adding it to the suit. Nevertheless, the defense argued that the report was untimely, claiming that the victims should have been required to file an expert report against the new defendants within 120 of filing the suit, even though the new defendants were not yet in the case. (The victims could not have served the new defendants with the reports earlier, because prior appellate court rulings prohibit serving a report upon a health care provider before suit has been filed against it.) The practical effect would be to prohibit suit against every other health care provider after 120 days of suing any health care provider. This would produce a very bad result because many times the facts are not clear in a medical malpractice case until the defendants are deposed (and depositions cannot begin until after the expert report is filed).

In the recent case of Osonma v. Smith, No. 04-08-00841-CV, 2009 WL 1900404 (Tex.App.-San Antonio 2009, writ denied)(mem. op.), the court of appeals in San Antonio rejected this defense tactic to avoid responsibility for medical negligence. The court of appeals ruled that:

Section 74.351(a)'s [120-day] requirement . . . does not necessarily refer to the first-filed petition in the lawsuit; it refers to the first-filed petition naming that defendant physician or health care provider as a party to the lawsuit.

The court further explained the "absurd results" that would flow from adopting the defendants' argument:

[A]fter more than 120 days after filing a lawsuit, even if the statute of limitations period had not expired, a plaintiff could never add another physician or health care provider as a defendant because she would never be able to timely serve an expert report on such a defendant.

The court then concluded by holding:

Therefore, because the expert reports were served on Dr. Osonma and IPC within 120 days of the filing of the amended petition, the first petition to name Dr. Osonma and IPC as defendants, we hold that the expert reports were timely served.

The medical malpractice statute, and the case law interpreting it, heavily favor health care providers at the expense of victims damaged by the negligence of health care providers. Because of that, defendants are emboldened to assert positions that are obviously unfair. Thankfully, the court of appeals in San Antonio refused to reward such tactics.

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