Birth Injury Plaintiff’s Failure to Timely Serve Defendant Nearly Results in Dismissal

Earlier this month, one state’s supreme court issued a written opinion in a birth injury case that had been dismissed by the lower court because the plaintiff failed to serve the defendant with notice of the lawsuit in a timely manner. In the case, Collins v. Westbrook, the plaintiff was a mother suing the defendant doctor for the wrongful death of her still-born daughter. The court ultimately held that, although the defendant was never served, the plaintiff showed “good cause” justifying the failure, and the case should not be dismissed on that basis.

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The Facts of the Case

The defendant was the plaintiff’s treating physician during her pregnancy, which resulted in a still birth. The plaintiff then filed suit against the defendant doctor, alleging that his negligence was the cause of her child’s still birth. As is required by the rules of procedure, the plaintiff set out to serve the defendant with notice of the lawsuit. The applicable rule requires notice to be provided within 120 days.

The plaintiff’s attorney charged his assistant with serving the defendant. However, shortly before the 120 days had elapsed, her attorney realized that the assistant had not effectuated service due to “great personal problems.” The attorney then hired a professional process server to track down and serve the defendant.

Three days before the 120 days had elapsed, the process server began looking for the defendant. An address and phone number were obtained, and initially the person answering denied that the defendant lived there. However, after the server explained that he had a special delivery from the defendant’s employer, the person on the line told the server, “that’s me, you can bring that to me.” The process server arranged to meet the defendant at a local pizza place.

Upon arrival at the pizza shop, the server paged the defendant and located him at the back of the restaurant. The server handed the defendant a pizza box with service inside.

At trial, the defendant claimed that he had not been served. He claimed that his father, also a doctor with the same last name, was served instead. The trial court dismissed the case against the defendant, based on the fact that he was not properly served within the 120 days.

On appeal, the case was reversed. The plaintiff argued that the rule allows for “good cause” in failing to serve within the required time period. The plaintiff argued, and the court agreed, that the defendant was misleading to the process server, and any fault was not attributable to the plaintiff as a result. Thus, as a result of this ruling, the plaintiff’s birth injury case will be permitted to proceed toward trial.

Are You Considering Filing a Personal Injury Lawsuit?

If you are considering filing a personal injury lawsuit, keep in mind that failing to comply with the procedural requirements of a case can result in the dismissal of an otherwise meritorious case. That is why it is best to have a dedicated personal injury attorney on your side, helping you comply with all aspects of the law. The Maryland and Washington, D.C. personal injury law firm of Lebowitz & Mzhen, LLC have decades of experience representing clients in all kinds of personal injury matters, and we know how to recover compensation for our clients. Call 410-654-3600 to set up a free consultation today.

More Blog Posts:

Medical Malpractice Case Dismissed for Failure to Comply with Medical Expert Requirements, Maryland Accident Law Blog, February 15, 2016.

Maryland Court Allows Plaintiff to Recover Compensation After Accident with Police but Limits Damages Under Tort Claims Act, Maryland Accident Law Blog, February 1, 2016.

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