Filing a new Texas medical malpractice lawsuit—like any other civil claim in Texas state court—requires detailed attention to some technical procedural steps. In some situations, messing up one of these details can lead to dismissal of a case.
Texas uses a fair notice pleadings standard. In Texas state court, the legal document that initiates a new lawsuit is called a petition. The fair notice pleadings standard requires a plaintiff to plead or discuss sufficient detail about the factual background and claims. This allows the defendant to figure out what the lawsuit is about. With few exceptions, Texas now mandates that plaintiffs file original petitions and other pleadings through an e-filing system.
The next step is to have the district clerk or county clerk (depending on where the suit was filed) issue the citation. The citation is an official notice from the clerk notifying the defendant that the lawsuit has been filed and when the defendant must file an answer to avoid a default judgment. Most plaintiffs’ attorneys request the clerk to issue citations when the lawsuit is filed, but there are some circumstances where there are strategic reasons to wait.
Once the citation is in hand, it has to be served on the defendant, along with a copy of the original petition or live pleading. This is often called service of citation or service of process.
Texas Rule of Civil Procedure 106 details the different ways that citation service may be achieved under Texas law. The Texas Supreme Court just announced a new method for service of citation that’s available in some circumstances—social media—that we’ll discuss in a moment.
In my mind, the gold standard for service of citation is to have a licensed process server hand deliver the citation and copy of the petition on the defendant. Once service is achieved, the process server will file an affidavit with the clerk to notify the court and all parties of the details of service. Service of citation by a private process server costs around $100.
It’s also possible to complete service of citation by hand delivery from a constable. I’m not a fan of using constables for this service because I’ve found them to be inconsistent in getting the job done and some of them aren’t so interested in customer service.
For similar reasons, I avoid service of citation by certified mail return receipt requested, which is also allowed by Rule 106. In my experience, the U.S. Postal Service has such inconsistent service that it’s too risky to entrust service of citation to the mail. Postal carriers often do not have the correct person sign the green card or even return the green card at all. This leaves defendants a way out to claim that they were never served at all.
It’s not very common, but from time to time we’ll have defendants—usually physicians—who try to dodge service. Some of the stories that we’ve heard from process servers are just crazy! One doctor pretended that he wasn’t home. Another physician called security to have the process server physically removed from his office. I’ve never understood how they thought such unprofessional conduct will help them. Do they really think that the plaintiff will just give up?
In any event, when a plaintiff has made attempts to serve a defendant by any means, but has been unsuccessful, there are some other options. This is where having a private process server on board is so helpful to a plaintiff, because he or she is able to prepare an affidavit detailing all of the service attempts and identifying the defendant’s residential and business addresses, which can be attached as support to a motion for substituted service.
When the trial court grants a motion for substituted service, the plaintiff can achieve citation service by leaving a copy of the citation with an attached copy of the petition with any person older than 16 years old at the residential or business address in the affidavit.
Thanks to Senate Bill 891, which was signed into law in 2019, and an amended rule announced by the Texas Supreme Court, trial courts may also order substituted service in any other manner, including electronically by social media, email, or other technology, that the affidavit, sworn statement or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit.
Being able to serve a defendant by Facebook, Twitter, or other social media will make it a lot harder for uncooperative defendants to delay justice. It will also make service of citation a much more public act that will be out in the open for social media friends and followers to see.
Legal innovations such as service of citation by social media are slowly bringing the law into the twenty-first century, and will save time, money, and judicial resources for everyone.
If you’ve been seriously injured because of poor hospital or physician care, then contact a skilled top-rated Houston, Texas medical malpractice lawyer to discuss your potential case.