Texas Medical Malpractice Plaintiff Loses Appeal In Misnamed Defendant Case

The Court of Appeals for the First District of Texas (“Texas Appellate Court”) held in its Opinion filed on July 26, 2018 that because the Texas medical malpractice plaintiff’s original petition incorrectly named “Dr. Smith” as one of the anesthesiologists who treated the decedent and the doctor’s actual name is “Sheth,” Dr. Sheth “was not named as a defendant during the limitations period [and] the [plaintiff] 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.”

The Underlying Facts

A cardiologist perforated the Donald Wendt’s artery while performing an angioplasty. As a result, the cardiologist called for an anesthesiologist, who improperly intubated Mr. Wendt, leading to a fatal loss of oxygen.

The medical records misidentified the treating anesthesiologist as “Dr. Smith.” The actual doctor involved, Dr. Milan Sheth, prepared and signed handwritten notes about his consultation but the notes have an illegible signature with “Sheth” printed by hand beneath the signature.

In mid-December 2013, a notice of claim and medical authorization were sent to the hospital, the cardiologist, and “Dr. Smith.” All notices and authorizations were sent to the hospital’s address.

On February 4, 2014, the decedent’s estate and daughters sued the hospital, the cardiologist, and two anesthesiologists, who were identified as “Zbigniew Wojciechowski, MD” and “Dr. Smith, MD.”

On December 2, 2014, the plaintiffs filed a supplemental petition that joined “Dr. Milan K. Sheth, MD” as a defendant. The supplemental petition included a “primary practice address” for Dr. Sheth that was different from the address of the hospital where the initial notice of claim was sent.

Dr. Sheth filed a motion for summary judgment, asserting the affirmative defense of limitations and arguing that because he was first named as a defendant after limitations expired, he was entitled to judgment as a matter of law. The plaintiffs responded that they had “named the correct defendant” in the original petition but misspelled his name due to the illegibility of his handwriting in the medical records.

The plaintiffs further argued that the only question was whether they had acted diligently to accomplish service after they supplemented their petition to “correct the spelling” of Dr. Sheth’s name, maintaining that they had acted diligently and therefore the late service on Dr. Sheth “should relate back to the date of the original petition.” The plaintiffs also argued the fact of Mr. Wendt’s death put Dr. Sheth “on notice of a potential claim for malpractice,” and therefore Dr. Sheth had not been prejudiced as a result of the delayed service.

The trial court granted summary judgment to Dr. Sheth, and the plaintiffs appealed.

Texas Appellate Court Opinion

The Texas Appellate Court stated that there is no dispute that “Dr. Smith” was named in the original petition and Dr. Sheth was named in a supplemental petition that was both filed and served after limitations expired.


The Texas Appellate Court stated that in order to prove misnomer, a nonmovant must show not only that there was a mistake in the name used in the pleading, but also that the correct parties already were involved in the suit and that application of the doctrine of misnomer will not mislead or disadvantage anyone.

The Texas Appellate Court held that the plaintiff failed to introduce evidence in the trial court that tended to show that Dr. Sheth already was involved in the suit and that application of the doctrine of misnomer would not mislead or disadvantage Dr. Sheth (there was no evidence presented in the trial court that Dr. Sheth had actual notice of the Texas medical malpractice lawsuit).

The Texas Appellate Court held: “The summary-judgment evidence submitted by Wendt in response to the motion for summary judgment conclusively showed that Dr. Sheth was not named in the original petition and that the original petition was not sent to his place of business … Dr. Sheth was not actually served with the lawsuit and was not otherwise shown to have been made part of the case during the limitations period. We conclude that Wendt failed to carry her burden in the trial court to prove misnomer and thereby avoid the operation of the statute of limitations.”

The Texas Appellate Court warned: “the lesson to be drawn from this appeal is not that a doctor’s illegible handwriting thwarted the pursuit of a claim against him, or that unscrupulous doctors could replicate such circumstances to avoid liability in future cases. It is instead 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.”

Source Wendt v. Sheth, No. 01-16-00749-CV.

If you or a family member may be the victim of medical malpractice in Texas or in another U.S. state, you should promptly consult with a medical malpractice attorney in Texas or in your state who may investigate your medical negligence claim for you and represent you or your family member in a medical malpractice case, if appropriate.

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This entry was posted on Monday, August 20th, 2018 at 5:22 am. Both comments and pings are currently closed.

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