I was recently investigating and working on a medical malpractice and wrongful death lawsuit involving care that was provided at Houston Methodist Willowbrook Hospital. After carefully reviewing the medical records with expert witnesses, we concluded that one of the doctors who needed to be named in the lawsuit was an anesthesiologist.
As a Houston, Texas medical malpractice lawyer, the first place I go to check a physician’s credentials is the license verification webpage of the Texas Medical Board. This free site allows physician searches by first name and last name, returning wealth of information including licensure status, past board disciplinary orders, medical school and post-graduate training, and hospitals where they have staff privileges.
When I searched for the anesthesiologist, two results came back. They were so similar that it seemed confusing.
Both physicians share the same first and last name. Both physicians are anesthesiologists. Both physicians have staff privileges at Houston Methodist Willowbrook Hospital. Both physicians have the same business address.
There are only two differences in the Texas Medical Board profiles that provide any information that may be useful to distinguish the two positions. While both anesthesiologists are medical doctors, one has an M.D. degree and the other had a D.O. degree. The doctors also have different middle names, although one of them may simply use a maiden name for middle name.
The hospital medical records were of little use in solving the mystery of which defendant to name as a defendant. Each reference to the anesthesiologist uses the suffix “M.D.,” but the middle initial is that of the “D.O.” anesthesiologist’s Texas Medical Board profile.
Misnomer and misidentification
While admittedly this is the first time in my career that I have encountered anything like this, it provides yet another example of why it never makes sense to hire an attorney, investigate the case, and file a lawsuit at the last minute.
If a lawsuit is filed, let us say, on the last day of the statute of limitations, and names the wrong person as a defendant, it can create a whole host of problems. After all, correcting the mistake would have to be done after the statute of limitations had expired.
As always, the devil is in the details. There are two types of lawsuit-naming mistakes that Texas law recognizes.
Misnomer refers to a situation when a plaintiff files a lawsuit and serves the correct defendant, but under an incorrect name. In this situation, the statute of limitations is tolled to allow the plaintiff to amend the petition and identify the correct name of the defendant.
Misidentification is when a plaintiff files a lawsuit and serves the wrong person or entity. The general rule for misidentification cases is that the statute of limitations is not tolled. In fact, Texas courts have held that a personal injury lawsuit is barred by the statute of limitations when a plaintiff misidentifies and serves someone other than the intended defendant and fails to amend and serve the correct defendant before the statute of limitations expires. See Marez v. Moeck, 608 S.W.2d 740 (Tex. Civ. App.—Corpus Christi 1980, no writ). An exception to the rules is when there are two defendants using a similar name, the correct defendant had notice of the suit, and the correct defendant was not misled or prejudiced by the mistake. See Flour Bluff ISD v. Bass, 133 S.W.3d 272 (Tex. 2004).
Let’s go back to the situation that I was investigating. I concluded that the only reasonable way to proceed is to name both anesthesiologists as defendants in the medical malpractice and wrongful death lawsuit. After all, I can, in good faith, rely on the inconsistencies between the medical records and Texas Medical Board profiles, which can reasonably be interpreted to reflect that both of the anesthesiologists were involved in the health care at issue. If that ends up being inaccurate, then the incorrect defendant can be quickly dismissed by agreement of the parties to the lawsuit.
In my experience, if only one of the two physicians was named and it ended up being the wrong one, a whole load of defense lawyers would argue to the trial court that the case should be dismissed by misidentification. A competent plaintiff’s attorney would never want to subject a client to that risk.
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Robert Painter is a medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits against hospitals, physicians, surgeons, anesthesiologists, and other healthcare providers. A member of the board of directors of the Houston Bar Association, he was honored, in 2017, by H Texas as one of Houston’s top lawyers. In May 2018, the Better Business Bureau recognized Painter Law Firm PLLC with its Award of Distinction.