Law school professors teaching civil procedure enjoy coming up with some of the strangest stories for exam questions. As a law student, it’s easy to think that the situations would never occur. In practice, they do from time to time.
One of the most basic requirements of proceeding with a lawsuit is ensuring that the plaintiff has given proper notice to the defendants and that they have been given an opportunity to file an answer and appear in the lawsuit. Under Texas law, this is accomplished by the district or county clerk (depending on where the suit is filed) issuing a citation, which the plaintiff must then serve on the defendant.
While there are various methods to serve the citation and I believe the best way is through personal service. This involves hiring a constable or private process server to physically deliver a copy of the citation and petition to the defendant.
It’s our practice to use a private processor. In almost all of our cases, the private process server is able to serve each defendant quickly. Once service is accomplished, the time starts ticking for the deadline by which the defendant must file an original answer in the lawsuit. The deadline is approximately three weeks after the defendant is served.
Occasionally, though, there are some wrinkles and challenges that come up in serving a defendant with citation and a copy of the original petition.
We recently encountered a unique situation in a newly-filed medical malpractice case.
We properly filed a lawsuit on behalf of our client against a plastic surgeon. After the district clerk issued citation, we forwarded it to our private process server with instructions to locate the plastic surgeon and serve him with a copy of the citation and original petition.
After the lawsuit was filed, but before the private process server could locate and serve the defendant, the plastic surgeon died.
At the time of the defendant’s death, he had not been served and had not filed an answer or appearance in the lawsuit. Even though his family was aware of the lawsuit, they couldn’t retain an attorney to file the answer on his behalf.
The reason for this is simple: A deceased person can’t hire an attorney. To fix this problem, we determined the identity of the person who would be executor of the defendant’s estate—his wife—and then amended the original petition to substitute that person in as the proper defendant.
The style of the case originally looked like this: Patient v. Doctor. After the amendment, it looked like this: Patient v. Wife of Doctor, As Executor of the Estate of Doctor. This fixed the procedural problem, so we could serve the new defendant and proceed in prosecuting this medical malpractice lawsuit against the estate of the plastic surgeon.
If you’ve been seriously injured because of poor hospital or medical care in Texas, then contact a top-rated experienced Houston, Texas medical malpractice lawyer for help in evaluating your potential case.
