Person becomes ‘party’ to suit when named as defendant, not when served, Texas high court says

A Texas anesthesiologist accused of causing a patient’s death was timely served with a required expert report even though he received it before he was served with the lawsuit itself, the state’s highest court has decided.

A unanimous three-justice panel of the Texas Supreme Court agreed Aug. 30 with a state appeals court, which in 2011 upheld a trial court decision denying Dr. Michael A. Zanchi’s motion to dismiss a malpractice suit against him because the plaintiff purportedly failed to comply with the state’s expert report requirement.

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The requirement, codified at Tex. Civ. Prac. & Rem. Code § 74.351(a), says a medical malpractice plaintiff must serve each party with at least one expert report within 120 days of filing suit or face dismissal.

Like the trial court and the intermediate appellate court, the state Supreme Court rejected Zanchi’s argument that plaintiff Reginald K. Lane violated the expert report requirement by prematurely serving the anesthesiologist before he was actually a party to the suit.

(Click here for the opinion.)

Zanchi became a party to the suit when Lane named him as a defendant, not when he received service of process, the panel said.

The ruling concerns a medical negligence suit Lane filed against Zanchi in the Lamar County District Court in April 2010 on behalf of himself and the estate of Juameka C. Ross.

According to Lane’s wrongful-death suit, Zanchi improperly placed an endotracheal tube inside Ross during spleen removal surgery, causing her to stop breathing and suffer brain damage that ultimately caused her death.  The complaint also named Zanchi’s practice, Paris Regional Anesthesia, as a defendant.

Lane had difficulty serving Zanchi with the complaint and mailed him an expert report at five different locations Aug. 19, 2010, the statutory deadline for serving the report.  Lane finally succeeded Sept. 16, nearly a month later, in serving Zanchi, according to the 2011 appellate court opinion.

The anesthesiologist asked the trial court to dismiss the suit for failure to comply with Section 74.351(a), contending he was not a party to the suit until service of process.

The court denied the motion, and a divided three-judge panel of the 6th District Court of Appeals affirmed.

Zanchi petitioned the Texas Supreme Court for review, arguing that a person becomes a party to a suit when he is served, waives process or makes an appearance at a proceeding.

(Click here for the petition.)

Four state appeals courts previously issued rulings consistent with this definition of “party,” he said.

The high court rejected this argument, finding that the appeals court majority  properly defined the term “party” in ruling against Zanchi.

The earlier decisions Zanchi cited wrongly relied on Mapco Inc. v. Carter, 817 S.W. 2d 686 (Tex. 1991), which pertained to personal jurisdiction, not party status, the high court said.

Zanchi et al. v. Lane, No. 11-0826, 2013 WL 4609113 (Tex. Aug. 30, 2013).