LEGAL MALPRACTICE– Plaintiffs sued in legal malpractice after their medical malpractice action was dismissed as untimely. The legal malpractice suit was filed even though the dismissal of the plaintiffs’ medical malpractice action was pending appeal. When the dismissal of the medical malpractice action was reversed and the medical malpractice action was reinstated, the plaintiffs refused to dismiss the legal malpractice action.

The plaintiffs continued to pursue their attorneys arguing that a failure to properly defend the exception in the medical malpractice action caused damages in the form of additional legal fees incurred in the appeal. Under these facts, the Louisiana Fourth Circuit in Thibodeaux v. Braud & Gallagher, L.L.C., 12-0904 ( La. App. 4 Cir. 1/31/13),  –So. 3d — upheld a dismissal of the legal malpractice suit.

The Braud Court reasoned that the plaintiffs could not show the prerequisites to legal malpractice because the underlying suit was, in fact, timely. The plaintiffs postulated that the dismissal could have been avoided had their attorneys made better arguments in the lower court. On this subject, the Braud Court stated:

[W]e cannot suppose that a single ineffective (or even unsound) argument in the trial court can constitute actionable negligence
when the party ultimately prevails on the very issue to which the ineffective argument was addressed.

In its analysis, the Fourth Circuit reaffirmed the principle that an attorney need not make the best argument or identify every legal issue involved. Instead, the attorney’s actions will be judged by the standard of the lowest acceptable conduct of a reasonable practitioner under the circumstances.

ALLOCATION OF FAULT– a comparison of fault among multiple actors is an inherently subjective process. To add guidance to this otherwise inconsistent process, the Louisiana Supreme Court long ago set forth a number of factors which should be used to guide this analysis. These factors, known as the “Watson Factors,” ask the trier of fact to consider the following:

1) Whether the conduct resulted from inadvertence or involved an awareness of the danger;

2) How great a risk was created by the conduct;

3) The significance of what was sought by the conduct;

4) The capacities of the actor, whether superior or inferior; and,

5) Any extenuating circumstances which might require the actor to proceed in haste, without proper thought.

The recent First Circuit decision in Guitreau v. City of Gonzales, 12-0794 (La. App. 1 Cir. 2/13/13), 2013 WL 557018 is an excellent example of the use of the Watson Factors.

In Guitreau, the Louisiana First Circuit reversed the lower court’s fault allocation and held a police officer 75% at fault when he pulled into the oncoming lane of travel and began to pass vehicles in pursuit of an alleged seatbelt violator. Although the officer used flashing blue lights and a “yelp” siren, the plaintiff did not see or hear these warnings. The plaintiff was injured when she took a left hand turn and her vehicle was struck by the officer’s vehicle. The plaintiff was held 25% at fault because of the high duty of care imposed upon a driver making a left hand turn.

Applying the Watson Factors, the Court felt that the plaintiff’s conduct was mere inattentiveness, whereas the officer’s conduct was a conscious decision (Watson Factor #1). The risk created by the officer’s conduct was also greater than that presented by the plaintiff’s conduct (Watson Factor #2). The Court observed that the pursuit of a suspected seatbelt violator was a “non-emergency situation.” Had the officer been pursuing a kidnapper or wanted murderer, then the significance of what was sought through his conduct (Factor #3) would have been greater and the allocation of fault may have been very different.

AGENCY PRINCIPLES– the Louisiana Third Circuit upheld a dismissal in favor of defendants in Henry v. Zurich American Insurance Company, 12-888 (La. App. 3 Cir. 2/6/13), — So. 3d. —. In Henry, the owner of a race horse sued a veterinarian when the race horse “Toolights Ruckus” died from a reaction to anesthesia. The owner asserted that he had not given any consent to the procedure such that the veterinarian should be held liable for the consequences of the non-authorized treatment. The owner contended that the trainer who took the horse to the clinic was not the owner and did not possess authority to consent to non-routine care.

The veterinarian responded that it reasonably believed that the trainer was in fact the owner of the horse. In rejecting the claim against the veterinarian, the Henry court held that the failure to obtain consent lied with the trainer or, alternatively, that the trainer did in fact have sufficient authority to act on behalf of the owner as his representative, or mandate. The Court also implied that the owner would have consented to the procedure had his consent been necessary.

In its discussions, the Third Circuit reaffirmed that allegations of veterinarian malpractice will be assessed under the same standards which govern medical malpractice claims.