Kelly on Malpractice

In Allgood v. Gateway Health Sys., 2009 WL 3029593 (Tenn.Ct.App.), plaintiff filed a medical malpractice action against the defendant physician by leaving the summons at the reception desk of the hospital where the physician practiced. The summons stated that service would be made to the physician by the commissioner of insurance or the U.S. mail, not via personal delivery to the hospital. The physician alleged “insufficiency of service of process” in his answer. The limitations period for the claim against the physician elapsed, and no new process was issued. As in Dumbaugh v. Thomas, the physician filed a motion for summary judgment, by alleging that the attempt at personal service was insufficient because no one at the hospital was authorized to accept service of process on his behalf. Thus, the patient’s claims were time-barred. The trial court granted summary judgment in favor of the physician. The plaintiff appealed, arguing that the physician waived the defense of insufficiency of service of process because his answer did not include the facts supporting the defense, as required by TENN. R. CIV. P. 8.03. The Court of Appeals reversed, finding that the defendant physician failed to comply with Rule 8.03, thereby waiving the defense of insufficiency of process. Allgood deserves discussion because the result differs markedly from (a) Dumbaugh v. Thomas, 2008 WL 2894792 (Tenn.Ct.App.) wherein summary judgment was affirmed for insufficiency of process because process was served on a nurse instead of the defendant physician and (b) Hall v. Haynes, 2009 WL 782761 (Tenn.Ct.App.) wherein summary judgment was affirmed for insufficiency of process was served on the defendant physician’s co-worker who was not specifically authorized to accept service for him. All three cases came from the Western Section.

A key fact in Allgood was that the physician did not challenge the plaintiff’s attempted personal service on the basis that no one at the hospital was authorized to accept service of process on his behalf. In support of their argument, the plaintiffs cited Barker v. Heekin Can Co., 804 S.W.2d 442 (Tenn.1991), wherein the Supreme Court held that the defendant waived the defense of insufficiency of service of process by failing to include in its motion to dismiss a recitation of those facts, “in short and plain terms,” upon which it was relying for dismissal” as required by Rule 8.03. The reason for such a rule is that the filing of a “specific negative averment will likely result in a prompt curative amendment by plaintiff,” thus preventing the dismissal of an otherwise meritorious claim on purely technical grounds.

In this case, the defendant could not be expected to include facts in his answer that were unknown to him. However, when the return of service was filed, the defendant became aware that the facts alleged in his answer to support his defense were not accurate. There was no attempt by the defendant to amend his answer or otherwise correct the misimpression created. The Court of Appeals found that the “misrepresentations” in the defendant’s answer were, from the plaintiffs’ perspective, worse than having stated no facts at all. This led the plaintiffs to conclude that the original service of process was effective. The plaintiffs could have easily re-issued process to preserve their cause of action. Nevertheless, the Court of Appeals found this argument irrelevant when the defendant fails to comply with Rule 8.03.

It is hard to square Allgood with Dumbaugh and Hall. While the physician received the summons indirectly, he was not served properly. It appears to me that the plaintiff got away with one. As a practical matter, the new Medical Malpractice Act of 2009 will solve this problem with its new service of process rule. The lesson of Allgood is two-fold: (1) the waiver doctrine applicable to Rule 12.02 defenses is alive and well and (2) always use interrogatories to make the opposing party state facts in support of every averment/paragraph in the complaint or answer. Allgood demonstrates how the factual basis of each averment can undermine legal arguments in your case.