HOUSTON – A Texas appeals court has affirmed summary judgment in a medical malpractice case filed against an anesthesiologist because the initial claim was made outside the statute of limitations.
The case, filed by the daughter of a man who died following complications during heart surgery in 2012, turned on the name of one of the doctors involved in treating the patient.
Melissa Wendt, the daughter of the deceased, Donald Wendt, initially named as a defendant a "Dr. Smith." Following discovery, it emerged his actual name was "Dr. Milan K. Sheth."
A trial court found he was served too late and granted summary judgment in favor of Sheth. The Court of Appeals for the 1st District of Texas, in an opinion authored by Justice Michael Massengale, agreed.
The appeals court ruled July 26 that Sheth was named "after the statutory limitations period expired."
In her appeal to the court, Melissa Wendt argued that Sheth could still be sued because his "illegible handwriting in her father’s medical records amounted to fraudulent concealment of his identity."
Wendt's argument was based on the "misnomer" rule, that she could not have known his real name when filing the complaint largely because the signature was illegible.
"We conclude that because Dr. Sheth was not named as a defendant during the limitations period, the Wendts did not prove in the trial court that a misnomer occurred so as to permit the later-filed petition to be treated as having related back to the date of the original petition," Massengale wrote. "Furthermore, because the fraudulent concealment argument was not raised in the trial court, it has been waived on appeal. Accordingly, we affirm."
Massengale said the lesson to be drawn from the appeal is not the illegible handwriting or that "unscrupulous doctors could replicate such circumstances to avoid liability in future cases."
It is, he ruled, that "when the identity of a potential defendant is in question, the mere filing of a lawsuit before the expiration of the limitations period may not be sufficient to ensure that all necessary parties are joined in the litigation.
"Instead, to the extent possible, the investigation of potential parties needs to be completed by the expiration of limitations, so that all defendants may be timely named and made part of the lawsuit."