Service of Expert Report on Anesthesiologist Before Service of Process Is Compliance

A woman died shortly after undergoing a splenectomy. The deceased patient's husband, individually and as personal representative of his wife's estate, filed suit under the Texas Medical Liability Act (TMLA) against the anesthesiologist alleging that the anesthesiologist's medical negligence resulted in the wife's death. The husband mailed the expert report and curriculum vitae of the expert witness, to the anesthesiologist at five different locations (including the Hospital) by certified mail on the statutory deadline for serving the report. Four of the mailings were returned unclaimed, but someone signed for the mailing sent to the Hospital. The record does not reflect the anesthesiologist's relationship to the person who signed for the mailing sent to the hospital, and the anesthesiologist neither admitted nor denied receiving the plaintiff’s expert’s report.


The anesthesiologist filed a motion to dismiss the suit for failure to timely serve an expert report as required by section 74.351(a) of the Texas Civil Practice and Remedies Code. At the hearing on the motion to dismiss, the anesthesiologist specifically argued that he was not a “party” to husband's suit until he was served with process, so any transmittal of the plaintiff’s expert’s report to him before the date on which he was served could not satisfy section 74.351(a).


The 62nd Judicial District Court, Lamar County, denied the anesthesiologist's motion to dismiss. The Court of Appeals for the Sixth District of Texas affirmed. The court of appeals held that the anesthesiologist became a party to the husband’s lawsuit when he was named as a defendant in the petition filed with the district clerk; and service of the plaintiff’s expert’s report via certified mail, the return receipt of which was signed by an individual allegedly unauthorized to accept service on the anesthesiologist's behalf, was not fatally defective.


The Supreme Court of Texas affirmed the judgment of the court of appeals. The court held that a claimant asserting a health care liability claim (HCLC) complies with section 74.351(a)'s mandate to serve an expert report on a “party” by serving the report on a defendant who has not yet been served with process. The court also held that “service” of an expert report on such a defendant need not comport with the service requirements in Rule 106 of the Texas Rules of Civil Procedure that apply specifically to service of citation.


“In a health care liability claim, a claimant shall, not later than the 120th day after the date the original petition was filed, serve on each party or the party's attorney one or more expert reports....” Tex. Civ. Prac. & Rem. Code § 74.351(a). The court held that in the context of the TMLA, the term “party” means one named in a lawsuit. One can be a “party” to a legal proceeding even though, not having been served with process, one has no duty to participate in, and may not be bound by, the proceedings. Therefore, service of the expert report on the anesthesiologist before he was served with process satisfied the TMLA's expert-report requirement.


In so holding, the court notably distinguished Mapco, Inc. v. Carter, 817 S.W.2d 686 (Tex.1991), which defined the term “party” with regard to personal jurisdiction. The court reasoned that the concept of personal jurisdiction is distinct from the concept of party status. Rendering judgment against a party who has not yet been served with process, accepted or waived service, or otherwise appeared raises due process concerns that are not implicated when serving a defendant with an expert report. Moreover, the court noted that its interpretation of “party” does not prejudice the defendant; rather, it gives the defendant advance notice of the pending lawsuit and the alleged conduct at issue.


The court also held that a claimant need not comply with the service-of-citation requirements under Texas Rule of Civil Procedure 106 in order to “serve” an expert report on a defendant who has not yet been served with process. The court reasoned that Rule 106 by its terms applies solely to service of citation.


See: Zanchi v. Lane, 2013 WL 4609113 (Tex. August 30, 2013) (not designated for publication).


See also Medical Law Perspectives, August 2012 Report: Anesthesiology Errors: Complications, Malpractice, and Catastrophe