In a recent opinion, the Texas Supreme Court ruled that when a patient is unable to deliver a copy of an expert report to a doctor within 120 days after filing suit because the doctor cannot be located, the patient’s claim must be dismissed forever. The ruling will reward a doctor for avoiding a copy of the lawsuit papers when he has been sued.
In Stockton v. Offenbach, ___ S.W.3d ___ (Tex.)(2/25/11), the mother of a boy sued the doctor who delivered him for malpractice. The doctor was allegedly a drug addict and had lost his license. Under the special rules applicable only to help doctors, the medical malpractice statute requires that the patient’s expert report be delivered to the doctor within 120 days after the suit is filed, not after he appears in the lawsuit. Here, the lawsuit could not be delivered to the doctor because he went missing, so the patient’s attorney delivered a copy of the expert report to the doctor’s insurance company and also asked the trial court for alternative notice of the lawsuit to the doctor (called “citation by publication”). The trial judge did not act on the motion for many months, during which time the 120-day deadline to deliver the expert report to the doctor expired. The Supreme Court said that this was “unfortunate,” but held that the law passed by the legislature required that result and dismissed the case with prejudice.
The effect of the ruling is to reward a doctor for avoiding receipt of the lawsuit papers. Because, if he can, then the patient cannot serve the expert report upon him and the claim will be dismissed without the opportunity for a jury to consider the merits of the case.