Legal Malpractice: An Ounce of Prevention Can Save You Benjamins

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 theplaintiff from filing within the prescriptive period. In In re MedicalReview Panel of Gerard Lindquist, 18-444 (La. App. 5 Cir. 5/23/19), 274So.3d 750, the Louisiana Fifth Circuit considered whether a decision not totell a patient about malpractice exempted from prescription a claim which wasnot 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-rayshowed a metal artifact in the operative site of his back, he was not informedand was discharged. He returned the next day with continued complaints of painand 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.

“Whether you want to admit it or not, the process has begun and the clock is already ticking.”

You've Got Mail (Just Not the Good Kind)You open your mail box. Flipping through the daily mail, you hope for a check and expect a few bills, but behind a glossy mailer and an annoying letter from opposing counsel, you find a certified letter--and it's from Office of Disciplinary Counsel. The letter advises that an ethics complaint has been filed against you. Whether you want to admit it or not, the process has begun and the clock is already ticking. This post explores what happens next.The Complaint- A complaint can be made by anyone and the mere fact of a complaint does not signify that it possesses merit. After a complaint is made, a screening process begins. At the point a letter finds its way into your mailbox, you will know that the ODC wants your side of the story. It is imperative that you respond and within the time delays allowed. Famously, Lincoln said that a lawyer who represents himself has “a fool for a client”-- you should strongly consider selecting counsel to represent you in the process.ODC Investigation- If a complaint is found to possess possible merit, the ODC will conduct an investigation. After the investigation, the ODC makes its recommendations from the following options:-Dismissal of the Complaint: A dismissal may be appealed;-Diversion: A diversion will allow the attorney to receive counseling, training, or assistance from the LSBA Practice Assistance and Improvements Committee in lieu of formal punishment;-Private Admonition: A private form of discipline used in cases of minor misconduct; or,-Formal Charges: The ODC must seek approval from a Hearing Committee chair to file formal charges.Formal Charges- If the ODC request for formal charges is approved, formal charges will be filed with the Louisiana Attorney Disciplinary Board. The ODC possesses a “clear and convincing” burden of proving an alleged ethical violation. The attorney has an opportunity to mount a defense before a Hearing Committee which will then issue a report and recommendation.Objections to Ruling- If an objection to the Committee’s ruling is raised, the matter will be heard before the Disciplinary Board. After briefs are filed and oral arguments made, the Board will make a recommendation which will then be filed with the Louisiana Supreme Court.Supreme Court – If either the attorney or the ODC objects to the recommendation of the Disciplinary Board, the Supreme Court will consider the matter after briefing and oral argument. The Supreme Court may reject the charges or issue sanctions to include: suspension, disbarment, or permanent disbarment.The rules set in place by the Supreme Court provide that formal charges against an attorney will be “deemed admitted” if no response is made within 20 days—even if the attorney otherwise had a meritorious defense. So, when you've got mail, the simple act of opening it may just save your career.Gracella Simmons’ practice includes defense of attorneys and law firms when professional liability claims are made and defense of attorneys in response to complaints made to the Office of Disciplinary Counsel.

InNiang 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 ofchance of survival” cause of action to non-medical defendants. Despite astatute which arguably supported such a cause of action under case facts, theFourth Circuit felt constrained to reject the claim.

OnMarch 7, 2017, Mouhamadou Niang collapsed while playing basketball at aYMCA. Mrs. Niang was certified in cardiac life support, and requested anautomated 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 March11, 2017 secondary to cardiac arrest.

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

TheYMCA filed a Motion for Partial Summary Judgment which was granted. Inits reasons, the trial court held that the “loss of chance” cause of action waslimited to claims raised in a medical malpractice context. The FourthCircuit affirmed.

TheFourth Circuit found that, although styled as a Motion for Partial SummaryJudgment, the YMCA had actually raised an Exception of No Cause of Action andtherefore analyzed the issue as a pure question of law. The FourthCircuit reviewed prior Louisiana Supreme Court decisions providing a right torecover damages for a loss of chance of survival in the medical malpracticecontext including the decision in Hastings v. Baton Rouge Gen. Hosp., 498So.2d 713 (La. 1986). In Hastings, the Louisiana Supreme Courtidentified a cause of action where a stab wound victim with weak vital signswas transferred from the hospital after the patient lacked insurance. The Hastingscourt 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.”

TheFourth Circuit identified no cases directly “on point” when the defendant wasnot a medical practitioner. Therefore, the Fourth Circuit gaveconsideration to a noted Oklahoma decision in Hardy v. Southwestern BellTel. Co., 910 P.2d 1024 (Okla. 1996) which addressed the issue. Thecourt in Hardy considered the public policy implications associated withexpanding the loss of chance of survival claim to non-medical cases andreasoned that the policy concerns which justify a reduced burden of causationin medical malpractice claims do not transfer to ordinary negligencecases. The cause of action against medical providers is supported by the“special relationship” of the physician and the patient. No suchrelationship exists in a non-medical setting.

Citingto Hardy, the Niang court determined that allowing a loss ofchance of survival claim with general negligence would allow for improperspeculation as to a person’s chance of survival. Identifying nocontrolling cases and the lack of any statute creating a cause of action innon-medical malpractice cases, the Niang court concluded that loss ofchance of survival claims are not supported outside of the medical context.

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 anoutdoorsman, a league tennis player, a cook, and a hobbyist writer.