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Texas Supreme Court to Hear Malpractice Suit Against Missing Doctor

Debbie Stockton didn’t know her obstetrician was a drug addict when her son William was born in 1989 with extensive nerve damage to his left arm.

But when the boy grew into a teenager and his atrophied arm didn’t improve, Stockton sought legal advice and learned that Dr. Howard Offenbach had checked himself into a drug treatment center within a week of William’s birth to kick a years-long Valium and hydrocodone habit.

So in 2007, Stockton sued, claiming that Offenbach caused William’s injury by failing to order emergency surgery when the boy’s shoulder became pinned beneath his mother’s pubic bone during a difficult delivery.

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The Stocktons, however, ran into a legal roadblock that derailed their lawsuit before it went to trial.

Texas malpractice law gave them 120 days after filing suit to serve Offenbach with their medical expert’s report and résumé, but Offenbach couldn’t be found. After losing his medical license in 2000 for drug abuse, Offenbach had moved from his Dallas house, been evicted from two apartments and disappeared from public records.

Even Offenbach’s lawyers — acting on behalf of the former doctor’s insurance company — have been unable to locate their client and say that Offenbach is “not findable.” Still, they asked the trial court to throw out the Stocktons’ lawsuit for blowing the 120-day deadline.

The district judge refused, noting that the Stocktons should not be penalized for failing an impossible task.

The Dallas appeals court, however, agreed with the doctor’s lawyers, ruling last year that the 120-day deadline contains no exceptions or time extensions. In a last-ditch effort to revive his lawsuit, William Stockton appealed to the Texas Supreme Court.

William Stockton’s birth injury left his arm weak, atrophied and with a limited range of motion, his lawyers say. He can’t straighten his left elbow or raise his arm above his head.

State malpractice laws give plaintiffs until their 20th birthdays to file suit for childhood injuries.

Texas law gives plaintiffs alternative ways to notify hard-to-find people that they’ve been sued, and the Stocktons filed a motion for substitute service about 40 days later, asking the district court to publish a newspaper notice of their lawsuit.

By the time court approval came and the notice was published, more than 270 days had passed, providing the Dallas appeals court with a reason to dismiss the Stocktons’ lawsuit last March.

Ar the Texas Supreme Court, Stockton’s attorney argued that throwing out William Stockton’s lawsuit for failing to meet an impossible burden — tracking down Offenbach when even his own lawyers can’t find him — would be so unfair it would violate the Texas Constitution.

Under the state Constitution’s open courts provision, anyone with a valid claim is guaranteed access to the legal system.

In addition, Texas courts have a long history of granting extra time to plaintiffs who diligently try to serve notice of a lawsuit — precedents that should apply to the 120-day deadline, said Peter Kelly, a Texas Trial Lawyers Association attorney arguing on the Stocktons’ behalf.

The language of the law clearly directs judges to dismiss any lawsuit that exceeds the 120-day deadline, according to a judge: “One one hand, we don’t want defendants dodging or hiding to let the 120 days lapse. On the other hand, we don’t want claimants to be lax in any way when the Legislature used this kind of strict rule.”

The Supreme Court has no deadline to issue an opinion, but a ruling typically takes 13 months after oral arguments. The case is Stockton v. Offenbach, 09-0446.

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