Friday, July 22, 2022

Medical Malpractice Claim Against Defendant Doctor Dismissed For Lack of Timely Service of Process

In the case of Frye v. Wellspan Health, No. 20-SU-1116 (C.P. Adams Co. Feb. 4, 2022 George, P.J.), the trial court granted a Defendant’s Preliminary Objections to a Plaintiff’s medical malpractice Complaint on the basis that the Plaintiff failed to effectuate proper service on that particular Defendant.

According to the Opinion, the Plaintiff filed a medical malpractice action against a medical doctor who performed a procedure placing a spinal stimulator on the Plaintiff’s thoracic spine. The Plaintiff also sued the medical facility and other Defendants.  

The Complaint was filed just five (5) days before the expiration of the statute of limitations.

According to the record before the court, the medical doctor was not an employee of the hospital where the procedure was performed but rather, was an independent contractor.  The Plaintiff served the hospital and the remaining individual Defendants but not the medical doctor who performed the actual procedure. 

After nearly nine (9) months into litigation, the doctor at issue received word from his insurance company about the lawsuit but otherwise alleged that he never was served with a copy of the Complaint.  He also asserted that he never authorized anyone else to accept service on his behalf.

The Plaintiff’s argued that they believed that the doctor was properly served when they served the hospital with the Complaint.

The Defendant doctor at issue filed Preliminary Objections asserting that he was not properly served until approximately 9 ½ months after the expiration of the applicable statute of limitations.

After applying the law of the Pennsylvania Supreme Court ruling in the case of Lamp v. Heyman, 366 A.2d 822 (Pa. 1976), and its progeny, the court found that the Plaintiff had not acted diligently to meet the Plaintiff’s requirement of making a good faith effort to complete service of process upon the Defendant. 

More specifically, the court found that the Plaintiff did not make a good faith effort to investigate the doctor’s service address. Also, although the doctor had not responded to any of pleadings for approximately nine (9) months, the Plaintiffs made no effort to investigate whether that Defendant had actually received the Complaint.

As such, the trial court dismissed the Plaintiff’s medical malpractice Complaint against that Defendant doctor with prejudice.

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 12, 2022).

Source of image: Photo by Ekaterina Bolovtsova from

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.