In the past week I had the opportunity to argue a medical malpractice case before the Texas Supreme Court. My situation before the Supreme Court involved an extreme set of facts that any fair-minded judicial body would work to help the little boy that I’m representing, so I am hoping they will.
My case involved a little boy who was injured at birth due to the negligence of a doctor. We had a previous case against this doctor and knew that he had a long history of drug abuse and was in and out of multiple residential treatment centers. We had evidence that shortly after the delivery of this child he went and was admitted to a residential treatment facility. The issue that we were dealing with is complying with the law that came about as part of the Texas Tort Reform. The law requires us after filing a lawsuit to serve on the defendant or his attorney a report authored by a physician listing the criticisms of the care and how it caused the child’s injury. Prior to filing the lawsuit we had obtained that report and knew that it was a very good case against the doctor. Unfortunately, the doctor could not be located anywhere despite us hiring private investigators and others to try and locate him. The law allows for the bringing of a law- suit against someone who cannot be located by serving them by publishing in the newspaper an announcement that they are being sued. In our case we had a report, we gave it to the doctor’s insurance adjuster, we filed it with our lawsuit papers at the courthouse and then proceeded to try and serve the doctor to bring him into the lawsuit so we could get the report to him and start the lawsuit. The doctor still could not be found so we went through the appropriate steps of serving him through the newspaper by notifying him of the lawsuit.
Unfortunately that process took more than the allotted 120 days to accomplish and after we accomplished serving by publication, the sneaky defense lawyer filed an answer and asked the case be dismissed. Why did he want the case dismissed? Because we could not locate the drug-addicted doctor who had lost his license by this point to give him a copy of our report. The trial court said that would be grossly and totally unfair and she did not agree with that and she denied their motion and the defendant appealed to the Dallas Court of Appeals who said it’s black and white, either you serve the report or you don’t within 120 days. Since we didn’t they kicked our case out of the court system. Well, we appealed to the Texas Supreme Court and the Texas Supreme Court, doing something they rarely do, agreed to hear oral arguments on the subject.
I argued before the Texas Supreme Court that it was impossible to comply with the statute and the statute should have an exception. The defense was represented by appellate lawyers who argued that the rule is the rule and there should be no exceptions. I can’t understand how any fair-minded person, especially a parent of a child, could argue that because the drug-addicted doctor dodged or hid from getting a report served on him he should get total immunity and a dismissal of any claims against him.
The Austin American Statesman wrote a lengthy article on this issue and I certainly hope justice will prevail. Supreme Court typically takes around a year to a year and a half to rule so we will be anxiously waiting the decision. Let’s just hope that justice and fairness still have a place in our court system.