Category: Legal Malpractice

“Collectibility” in Legal Malpractice: Can a client have greater rights against an attorney that existed in the underlying case?

12.01.2020

It is well-established that a client in legal malpractice shall have no greater rights against their attorney than they had against the original defendant. That is, until the recent decision by the Supreme Court in Ewing v. Westport Insurance Corporation, 20-00339 (LA. 11/19/20), 2020 WL 6789490 where the Louisiana Supreme Court held that the “collectibility“ of the underlying judgment against the defendant is neither part of the plaintiff’s burden of proof nor the proper subject of an affirmative defense.

In Ewing, the defendant/attorney fax-filed a petition for damages but failed to forward the original petition within seven days as required by statute. As a result, the claim he sought to advance on behalf of Elaine Ewing prescribed. Ewing sued her attorney and his insurer.

Prior to trial, the tortfeasor testified that he would have filed for bankruptcy had an excess judgment been entered. On this basis, the defendants obtained a motion for summary judgment establishing that the underlying tortfeasor would have been unable to pay any amount above the $30,000 in available insurance coverage. Following trial, an award of $30,000 was entered in favor of the plaintiff and the plaintiff appealed.

The appellate court reversed citing to the decision in Rodriguez v. Traylor, 468 So.2d 1186, 1188 (La. 1985) which held that “the wealth or poverty of a party to a lawsuit is not a proper consideration in the determination of compensatory damages.“

The Supreme Court upheld the appellate opinion. In the analysis, Chief Justice Johnson on behalf of the majority also cited to the Rodriguez decision for the proposition that the wealth of the tortfeasor is not relevant to damages. The majority acknowledged that a majority of courts nationwide hold that the collectibility of a judgment is an essential element of a plaintiff’s legal malpractice case. It also observed “a growing trend” in other states to allow the defendant/attorney to plead collectability as an affirmative defense. Nevertheless, the Supreme Court in Ewing chose to follow neither position.

The defendants in Ewing did not argue that collectibility was part of the plaintiff’s burden. However, they did assert an affirmative defense on this basis. In rejecting this defense, the Ewing court found that nothing in statutory law of Louisiana limits damages based upon the collectibility of a judgment against a particular tortfeasor. In Ewing, it was established that the tortfeasor would have been immediately unable to pay an excess judgment. Nevertheless, the majority highlighted that a money judgment is valid for 10 years and may be revived for successive 10-year periods. As such, the court concluded that the money judgment has intrinsic value, regardless of immediate collectibility. To quote the majority, “impecunity is a snapshot in time.”

The concurring opinion by Justice Weimer reasons that there may be certain and rare cases where the underlying tortfeasor is truly judgment proof. In that circumstance, he writes that summary judgment in favor of the defendant may be appropriate but not under the record before the court.

Writing for the dissent, Justice Crain observed: “Thirty states have determined collectibility is relevant in a legal malpractice action. No state has reached a contrary conclusion, until now.” According to the majority, the absence of any statute making collectability a relevant consideration mandated the result under our civilian traditions. Justice Crain disagreed and argued that the majority opinion is inconsistent with the Code of Evidence articles which generally allow the admissibility of relevant evidence such as an inability to pay. La. L.C.E. art. 402. In support of his position, Justice Crain gave a hypothetical scenario involving an insolvent, uninsured driver who rear-ends a world-class professional athlete rendering him a paraplegic, resulting in damages and $50 million. About this hypothetical, he states:

“What did the plaintiff lose, or what harm did the lawyer cause the plaintiff, when the lawyer failed to preserve the claim against the insolvent, uninsured driver? The lawyer did not cause the paraplegia, nor did he caused a loss of $50 million, as that money was clearly uncollectible.“

To Justice Crain, the determinative question is the value of the lost judgment.

Insofar as the majority and concurring opinions highlight the absence of any statutes to support their conclusions, it would not be surprising for this issue to be considered by the legislature in coming years.

Collin is a Keogh Cox partner who litigates injury, commercial, and legal malpractice disputes. He lives in nearby Zachary, Louisiana with his wife Melissa and three all too active children. He is an outdoorsman, a tennis player, a cook, and a hobbyist writer.

This blog was written in partnership with Andrew “Drew” Blanchfield whose practice also includes professional liability defense.

Medical Malpractice: Can failure to communicate test results be medical malpractice?

05.20.2020

The Louisiana Fourth Circuit Court of Appeal recently considered a medical malpractice case with an unusual set of facts. Rather than the standard medical malpractice case, where a patient argues that he was misdiagnosed and/or claims that the doctor made a mistake when administering medical treatment, in Dufreche v. Jeffery Wayne Coco, MD and Internal Medicine Specialists, Inc., 2020-CA-0030 (La. App. 4^th Cir.), the patient alleged that his doctor committed malpractice by failing to communicate test results.

In Dufreche, the patient showed signs of an HIV infection. He was tested twice before being treated by the infectious disease specialist. Both tests were negative. During his examination, the infectious disease doctor thought it was unlikely that the patient had HIV, but tested him anyway at the patient’s insistence. According to the patient, he was notified by the doctor that he would be provided the results upon receipt.

Unfortunately, the test results showed that the patient was HIV positive; however, he was not contacted. Fifteen months passed, during which the patient was unaware that he was HIV positive. Because he was not contacted, he assumed he was negative. When testing by another physician showed he was positive, the patient/plaintiff filed suit to recover damages allegedly suffered through a delay in treatment and psychological shock, including a claim for “emotional distress.”

To recover, the patient was required to establish: 1) the standard of care; 2) breach of that standard of care; and 3) that the breach caused his emotional distress. At trial, the doctor testified that he required his patients to follow up in person to receive test results, and expected the patients to contact his office to schedule an appointment. The court found that expecting a patient to follow up in person to receive sensitive test results was not a breach of the standard of care. However, the evidence established that the patient was not instructed that he must schedule an in-person appointment to obtain his test results.

The Dufreche court agreed with the lower court in finding that a failure to notify the patient of the doctor’s policy was a breach of the standard of care. Further, the court found that the infectious disease specialist, who admitted to a duty to the public to protect them from HIV, had also breached his duty for failing to notify an HIV positive patient of his diagnosis for over fifteen months. The doctor’s failure to communicate the results caused the patient’s emotional distress – resulting in an award of $45,000 in damages.

Virginia “Jenny” McLin is a partner at Keogh Cox who practices in the fields of corporate litigation, insurance defense and workers compensation defense. When she is not practicing law, Jenny can be found volunteering with the Junior League of Baton Rouge; cheering for the LSU Tigers with her husband Ryan; or shuffling her two kids to and from dance practice.

Torts: “Loss of Chance”: Claim Limited to Medical Malpractice

12.31.2019

In Niang v. Dryades YMCA School of Commerce, Inc., 19-0425 (La. App. 4 Cir. 12/4/19), – – – So.3d – – -, the Fourth Circuit declined to expand the “loss of chance of survival” cause of action to non-medical defendants. Despite a statute which arguably supported such a cause of action under case facts, the Fourth Circuit felt constrained to reject the claim.

On March 7, 2017, Mouhamadou Niang collapsed while playing basketball at a YMCA. Mrs. Niang was certified in cardiac life support, and requested an automated external defibrillator (“AED”) to attempt to resuscitation. Mrs. Niang was advised that an AED machine was not available. Thereafter, Mr. Niang was transported to University Medical Center where he died on March 11, 2017 secondary to cardiac arrest.

Mrs. Niang sued the YMCA for failing to have an AED machine on premises and asserted multiple claims including a loss of chance of survival claim. She contended that the lack of the defibrillator contributed to her husband’s death. Under La. R. S. 40:1137.3, all “physical fitness facilities” such as the YMCA are required to have an AED available.

The YMCA filed a Motion for Partial Summary Judgment which was granted. In its reasons, the trial court held that the “loss of chance” cause of action was limited to claims raised in a medical malpractice context. The Fourth Circuit affirmed.

The Fourth Circuit found that, although styled as a Motion for Partial Summary Judgment, the YMCA had actually raised an Exception of No Cause of Action and therefore analyzed the issue as a pure question of law. The Fourth Circuit reviewed prior Louisiana Supreme Court decisions providing a right to recover damages for a loss of chance of survival in the medical malpractice context including the decision in Hastings v. Baton Rouge Gen. Hosp., 498 So.2d 713 (La. 1986). In Hastings, the Louisiana Supreme Court identified a cause of action where a stab wound victim with weak vital signs was transferred from the hospital after the patient lacked insurance. The Hastings court commented on the reduced burden of proof in such cases:

“The law does not require the plaintiff to prove to a certainty that the patient would have lived had he received more prompt diagnosis and treatment for the condition causing the death.”

The Fourth Circuit identified no cases directly “on point” when the defendant was not a medical practitioner. Therefore, the Fourth Circuit gave consideration to a noted Oklahoma decision in Hardy v. Southwestern Bell Tel. Co., 910 P.2d 1024 (Okla. 1996) which addressed the issue. The court in Hardy considered the public policy implications associated with expanding the loss of chance of survival claim to non-medical cases and reasoned that the policy concerns which justify a reduced burden of causation in medical malpractice claims do not transfer to ordinary negligence cases. The cause of action against medical providers is supported by the “special relationship” of the physician and the patient. No such relationship exists in a non-medical setting.

Citing to Hardy, the Niang court determined that allowing a loss of chance of survival claim with general negligence would allow for improper speculation as to a person’s chance of survival. Identifying no controlling cases and the lack of any statute creating a cause of action in non-medical malpractice cases, the Niang court concluded that loss of chance of survival claims are not supported outside of the medical context.

Interrupted by Silence: Medical Malpractice Prescription

09.04.2019

By C. Reynolds LeBlanc

La. R.S. 9:5628 provides that a patient/medical malpractice plaintiff must assert his or her claim within one year of the alleged negligent act or from when that act is discovered. If a claim is not raised within this time frame, it is “prescribed,” i.e., untimely. The statute also declares that all claims must be asserted within three years of the alleged negligent act, even if the patient was unaware of the malpractice. However, there are exceptions.

Under the doctrine of contra non valentem, prescription does not run if the defendant has done something to prevent the plaintiff from filing within the prescriptive period. In In re Medical Review Panel of Gerard Lindquist, 18-444 (La. App. 5 Cir. 5/23/19), 274 So.3d 750, the Louisiana Fifth Circuit considered whether a decision not to tell a patient about malpractice exempted from prescription a claim which was not filed within three years of the alleged malpractice.

In the case, Lindquist had spinal surgery on August 22, 2013. He returned on August 24, 2013 with complaints of pain. Although an x-ray showed a metal artifact in the operative site of his back, he was not informed and was discharged. He returned the next day with continued complaints of pain and an MRI was ordered. Like the x-ray, the MRI showed the metal artifact. Again, the plaintiff was not informed.

Lindquist continued to experience pain for years. When another MRI was performed on May 25, 2017, Lindquist was first informed of the metal object in his back. Within months, he filed a claim against the doctor who performed the 2013 surgery. In response, the doctor argued that the claim was prescribed under La. R.S. 9:5628 because it was filed more than three years after the surgery.

Contra non valentem applies where a plaintiff has been lulled into inaction because of concealment or fraudulent conduct by the defendant. The doctor argued that this standard was not met simply because the doctor was silent about the patient’s condition. However, the Lindquist court held that a doctor possesses an affirmative duty to advise a patient of pertinent medical information such as the presence of a metal artifact near the spine. Therefore, if the doctor, as alleged in Lindquist, failed to disclose a metal foreign object, this would constitute a fraudulent act which prevented the plaintiff from filing his claim timely. In Lindquist, prescription was interrupted by silence and the plaintiff/patient was allowed to pursue his claim.

Reynolds LeBlanc is a partner at Keogh Cox. His practice areas include commercial litigation, personal injury claims, appeals, and other matters. Reynolds is a former teacher, who in his free time plays music and perpetually talks himself into training for his next marathon.

Legal Malpractice: An Ounce of Prevention Can Save You Benjamins

06.02.2016

Benjamin Franklin is famous for many things including his musing that “an ounce of prevention” is worth a “pound of cure.” While that truism applies to many aspects of life, it represents real-world reality when it comes to avoiding legal malpractice. When a few simple steps can avoid disaster, attorneys may want to spend a few “pennies” of their time and consider these steps.