Posts Tagged ‘texas service of process’

Time nearly up on malpractice suit against missing doctor -Texas style

Tuesday, March 30th, 2010

In an article recently published online through the Austin-American Statesman website, one of the many harsh realities of our legal system is exposed.  The significance of procedural deadlines, and what may ultimately happen if such a deadline is not met (despite best efforts) is highlighted in this tragic story.  The following is a very brief summary, as taken from the article:

Debbie Stockton didn’t know her obstetrician was a drug addict when her son William was born in 1989 with extensive nerve damage to his left arm.

But when the boy grew into a teenager and his atrophied arm didn’t improve, Stockton sought legal advice and learned that Dr. Howard Offenbach had checked himself into a drug treatment center within a week of William’s birth to kick a years-long Valium and hydrocodone habit.

So in 2007, Stockton sued for an unspecified amount, claiming that Offenbach caused William’s injury by failing to order emergency surgery when the boy’s shoulder became pinned beneath his mother’s pubic bone during a difficult delivery.    

The Stocktons, however, ran into a legal roadblock that derailed their lawsuit before it went to trial.

Texas malpractice law gave them 120 days after filing suit to serve Offenbach with their medical expert’s report and résumé, but Offenbach couldn’t be found. After losing his medical license in 2000 for drug abuse, Offenbach had moved from his Dallas house, been evicted from two apartments and disappeared from public records.

Even Offenbach’s lawyers — acting on behalf of the former doctor’s insurance company — have been unable to locate their client and say that Offenbach is “not findable.” Still, they asked the trial court to throw out the Stocktons’ lawsuit for blowing the 120-day deadline.

The case has traveled its way up through the Texas court system over the past several years, before ending up at oral argument last week before the Texas Supreme Court.  The article also details the extent to which the Stocktons’ lawyer went to attempt to serve Dr. Offenbach with the lawsuit.

Sadly, Debbie Stockton passed away last fall from cancer.  The injured victim, William Stockton, is fighting for his cause, as the case has been continued under his name.  The Court now has the case under review.  We do not know what the Court will hold.  The article leaves us with this:

Justice Dale Wainwright mused aloud about the court’s dilemma.

The language of the law clearly directs judges to dismiss any lawsuit that exceeds the 120-day deadline, he noted: “On one hand, we don’t want defendants dodging or hiding to let the 120 days lapse. On the other hand, we don’t want claimants to be lax in any way when the Legislature used this kind of strict rule.”