Zanchi v. Lane
408 S.W.3d 373
| Tex. | 2013Background
- Lane sued anesthesiologist Michael Zanchi under the Texas Medical Liability Act after a patient’s death; Zanchi was named in the original petition but not served with process until ~5 months later.
- Lane mailed an expert report and CV to Zanchi by certified mail on the 120th day after filing (statutory deadline); one certified-mail receipt was signed at the hospital but most attempts were returned unclaimed.
- Zanchi moved to dismiss under Tex. Civ. Prac. & Rem. Code § 74.351(a) for failure to timely serve an expert report, arguing a defendant is not a “party” for § 74.351(a) purposes until served with citation.
- The trial court denied dismissal; the court of appeals affirmed, holding a person named in the pleading is a “party” whether served or not.
- The Supreme Court of Texas considered: (1) whether a defendant named but not yet served is a “party” for § 74.351(a); and (2) whether an expert report must be served according to Rule 106 (formal citation service).
- The Court affirmed the court of appeals: a named defendant is a “party” for § 74.351(a), and the expert report need not comply with Rule 106’s citation formalities to qualify as “service.”
Issues
| Issue | Plaintiff's Argument (Lane) | Defendant's Argument (Zanchi) | Held |
|---|---|---|---|
| Whether a defendant is a “party” under § 74.351(a) before being served with process | A named defendant is a party for § 74.351(a); serving the report on a named defendant satisfies the statute | A defendant is not a “party” until served, waives service, or appears; thus pre-service delivery cannot satisfy § 74.351(a) | A person named in the lawsuit is a “party” for § 74.351(a); serving the expert report on a named defendant before citation satisfies the expert-report requirement |
| Whether service of an expert report must comply with Rule 106 (formal citation service) | Service need not follow Rule 106; Rule 106 governs citation only and the statute does not import Rule 106 requirements | Rule 106 service requirements apply when serving an expert report on an unserved defendant | Rule 106 applies only to service of citation; the statute’s "serve" does not require compliance with Rule 106 (and Rule 21a methods are typically applicable) |
Key Cases Cited
- Stockton v. Offenbach, 336 S.W.3d 610 (Tex. 2011) (explaining mandatory expert-report requirement under the TMLA)
- Mapco, Inc. v. Carter, 817 S.W.2d 686 (Tex. 1991) (discusses personal-jurisdiction and prerequisites for rendering judgment against an unserved defendant)
- Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669 (Tex. 2008) (indicates a provider named in the original petition must be served with a report before statutory period expires)
- Samlowski v. Wooten, 332 S.W.3d 404 (Tex. 2011) (states the TMLA’s purpose to eliminate frivolous claims while preserving meritorious ones)
- Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97 (U.S. 1987) (due-process principle that personal jurisdiction requires service of summons)