By Todd Cooper
World-Herald Staff Writer

A doctor is off the hook for any complications that an Omaha woman suffered after gastric bypass surgery.

And Douglas County taxpayers might be on the hook.

An Omaha woman, Eugenia Kudym, is suing the county because a sheriff's employee failed to serve her doctor with a medical malpractice lawsuit.

The possible cost of that missed delivery? The woman's attorney says the county owes $450,000 for damages he believes he could have recovered from the doctor.

Kudym's attorney, Clete Blakeman, said the case is a "crazy" lesson in the importance of paying attention to details - especially when those details are spelled out in state law.

Generally, lawsuits can be served on someone in three ways: by certified mail, by leaving it with someone of suitable age at the person's place of residence or by handing the summons directly to the individual.

Every year, the nine civil process servers at the Douglas County Sheriff's Office are asked to serve about 28,000 papers on people - including protection orders, subpoenas and lawsuits. The county charges a fee per service, typically about $15 to $25.

And attorneys like Blakeman say they usually don't have to worry about whether their lawsuits reach the intended target.

This case was different.

On May 16, 2003, Kudym underwent gastric bypass surgery at the Nebraska Medical Center. The surgery was successful, Blakeman said, but Kudym suffered complications afterward.

Namely, she couldn't keep anything down - even something as simple as water or yogurt.

Over time, Blakeman said, she became so malnourished she couldn't walk. She suffered persistent nausea and vomiting, vertigo and double vision.

"She felt like she was on her deathbed," Blakeman said.

Finally, after several weeks of suffering, a pharmacist friend advised Kudym that he had heard of her problem and that she needed an enzyme to offset complications from the gastric bypass.

Kudym began taking the enzyme with her food - and immediately started feeling better.

Blakeman said the 47-year-old now is doing much better.

In July 2005, Kudym filed a lawsuit against her doctor and the Medical Center for failing to diagnose her condition.

Blakeman said he filed the lawsuit at that point because he wanted to ensure that he was within two years of Kudym's postoperative complications. There is a two-year statute of limitations on medical malpractice claims.

After filing the lawsuit, Blakeman had six months to have the doctor and the hospital served.

Blakeman said he waited several months before serving the lawsuit because he wanted a medical expert to confirm that he had a viable case. The expert did.

In January 2006, he chose to have the Sheriff's Office serve the doctor and the hospital.

Blakeman said he was concerned that they be served quickly at that point, before the six-month time limit expired Jan. 26, 2006.

The civil process server filed a document in court certifying that she had served both the doctor and the hospital agent on Jan. 19, 2006. (Blakeman eventually dropped the lawsuit against the hospital.)

On Feb. 3, 2006, the doctor filed notice that he hadn't been served.

Judge Patricia Lamberty held two hearings on the issue.

The server testified that she had hand-delivered the lawsuit to the doctor. But the doctor had an alibi, Blakeman said, and was able to prove that he wasn't even in the building to be served.

Further, the hospital's agent said the server simply left two lawsuits with him and asked him to deliver one of them to the doctor.

"That doesn't cut it," Blakeman said.

Because the server didn't hand the lawsuit to the doctor - as specified by state law - Lamberty ruled that the doctor had not been properly served. And it was too late for Blakeman to have the lawsuit served again.

As a result, Kudym filed a claim with Douglas County - asking for the $450,000 Blakeman believes he would have recovered against the doctor.

"In effect," Blakeman said, "the county has replaced the doctor."

Douglas County Attorney Don Kleine noted Friday that Blakeman not only will have to prove that the lawsuit wasn't served properly, he'll have to prove the doctor committed malpractice.

Kleine said he is reviewing the case and will determine later whether the county will have to hire outside counsel to defend the malpractice portion of it.

All told, the county could end up paying for a malpractice defense team, a settlement or, if Blakeman wins at trial, a verdict against the doctor.

"It's just a weird, weird deal," Blakeman said. "It really makes you realize the importance of the details.

"Sometimes, it's those details that come back to snap at you."

April 30, 2007