You’ve been served … or have you?

DEPOSIT PHOTOS

Being served with a lawsuit can be a jarring event and is almost always an unwanted surprise. This article will explore what being “served” with a lawsuit entails, the methods of service afforded under Virginia law, certain nuances that can occur, and what to do when your company, or your medical practice has been served with a lawsuit.

Where it begins

Once a lawsuit is filed with the court, service of process upon the named defendant(s) must occur within one year of the date of filing. The term “service of process” is a term that encompasses being served with both the summons and complaint by the proper means outlined in Virginia Code §8.01-296.

Ways to serve individuals

Under Virginia law, service of process upon an individual may occur by (1) personal service or (2) substituted service. Personal service is just how it sounds: a copy of the documents is produced to an individual party personally.

Amber Bockin

Substituted service, on the other hand, is a bit more complicated. Substituted service can occur when the party to be served is not found at his/her usual place of abode by delivering a copy of the documents and giving information of its intent to any person found at the home who is a family member and who is 16 or older. Under this branch of substituted service, the person who service is being left with cannot be a temporary guest at the home.

If substituted service cannot be achieved in the previous manner, then posted service is permitted. Posted service occurs by posting a copy of the documents at the assumed main entrance of the home (as long as it is not less than ten days before default judgment may be entered), and a copy of the documents are mailed to the party being served.

Upon receipt of proper service of process, the court then has legal authority to move forward with the litigation.

Ways to serve companies

In litigation, we often see individual healthcare providers named and the affiliated practice in which they work. Service upon a domestic corporation or limited liability company varies compared to service upon an individual.

In accordance with Virginia Code §8.01-299, a domestic corporation can be served by personal service upon any officer, director, or registered agent of the corporation or the registered agent of the limited liability company.

If the address of the registered office of the corporation or limited liability company is a residential home, substituted service is permitted by the same means as substituted service is permitted on individuals.

Finally, if a corporation or limited liability company fails to appoint or maintain a registered agent, or whenever the registered agent cannot be found with reasonable diligence, then service is also permitted through the Clerk of the State Corporation Commission under Virginia Code §12.1-19.1.

Does the front desk count?

Frequently in a workplace setting, mail or other packages are dropped at the front desk for processing and distribution. But what about legal documents attempting to be served to the officer or director at the practice? If the front desk assistant receives the legal documents, does that mean the healthcare provider or the practice has been properly served? Not necessarily.

Generally, front desk personnel typically do not fall within the roles identified as whom to serve for a corporation or limited liability company (officer, director, or registered agent). However, a front desk assistant may be designated as someone who can accept service under Virginia Code §13.1-637.

Virginia Code §13.1-637 outlines that a registered agent may, in writing and notarized, designate a person in the registered agent’s office upon whom service of process may be served. Whenever this delegated person accepts service of process, a photographic copy of the instrument designating the person or authorizing the method of service and receipt shall be attached to the return form sent back to the court. Therefore, unless the registered agent has identified in a notarized writing that the front desk personnel is permitted to accept service on his/her behalf, serving the front desk person does not constitute proper service upon the practice.

If a registered agent has delegated acceptance of service of process as described above, then the practice would be considered to have been properly served. Should the registered agent delegate acceptance of service of process, ensure to have discussed the importance of alerting and providing a copy to the registered agent and risk management team of receipt of such documents to prevent any failure to timely respond.

Served. Now what?

Although it is unsettling, once the complaint and summons are served, you should contact your risk management team, liability insurance company and/or attorney as soon as possible. By doing so, arrangements can be made for the appropriate responsive pleadings to be filed in the specified 21days of service. Those legal documents will also include any initial legal defenses that can be asserted. Notifying your risk management team and liability insurance carrier can help prevent the risk of default judgment being entered against you by failing to respond.

Amber Bockin is an associate in Hancock Daniels’ Virginia Beach office where she handles medical malpractice defense and long-term care/assisted living facility matters.

Disclaimer: This article is not intended to provide legal advice or suggest a guaranteed outcome in photographing a patient’s injuries or using photographs in various settings.  Readers seeking legal advice regarding photographing a patient’s injuries or HIPAA compliance should consult with an attorney.