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

The question addressed in MR Pittman Group, LLC versus Plaquemines Parish Government, 2015-0396 (La.App. 4 Cir. 12/2/15) was whether the five-year peremptive period set by La. R.S. 9:5607 displaces Louisiana’s general one-year prescriptive period set by La. C.C. art. 3492, when applied to tort claims against design professionals. Finding a contractor’s claim against the project engineers prescribed, the MR Pittman court held that the one-year prescriptive period governs tort claims against design professionals.

La. R.S. 9:5607 explicitly provides a peremptive period that extinguishes all claims against architects, engineers and other design professionals five years after the project is completed, thus limiting design professional liability associated with the project. The MR Pittman plaintiff/contractor argued that the statute also eliminates the one-year prescriptive period and instead creates a special five-year prescriptive period, which allowed the contractor up to five years to bring its claim against the engineers to recover for delay and other extra costs allegedly resulting from deficiencies in the construction plans. This interpretation effectively expands tort liability by increasing the time period for bringing a tort claim from one to five years. In rejecting this argument, the MR Pittman court clarified that under the statute any claimant has no more than five years after project completion to bring suit against the design professional for any cause. However, a tort claimant still has only one year to file suit from the date he “knew or should have known” of damage caused by the alleged wrongful actions of the design professional.

A secondary question addressed in MR Pittman was the date of commencement of the one-year prescriptive period, which under La. C.C. 3492 commences to run from the day damage is sustained. The defendant/engineers argued that prescription commenced when the contractor first became aware of the alleged design deficiencies early in construction, as evidenced by the contractor’s notice to the owner of the deficiencies. The contractor argued that it could not fully appreciate its damages until the change orders were resolved later in the project. Citing Louisiana Supreme Court precedent holding that the quantum of damages need not be certain or fully incurred to trigger commencement of prescription, Harvey v. Dixie Graphics, Inc., 593 So.2d 351, 354 (La. 1992), the court agreed with the engineers’ position and dismissed the claims.

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.

Webster's top two definitions of the word "drone" are as follows:

1: A stingless male bee (as of the honeybee) that has the role of mating with the queen and does not gather nectar or pollen.

2: one that lives on the labors of others: parasite

While bees and parasites have their allure, Webster's third definition of the word "drone" is the one with current intrigue.

According to Webster's, a drone is also "an unmanned aircraft or ship guided by remote control or onboard computers." Drones began as play things; but are now poised to revolutionize industry, retail, agriculture, journalism, art, and law at an ever-increasing pace.

Currently, drones are regulated by the Federal Aviation Administration which has for decades regulated flight by planes and helicopters; but not everyone can own an airplane or helicopter. Everyone can own a drone and many soon will.

The soon-to-be pervasive use of drones will stretch at the fabric of criminal and civil law and raises intriguing questions with hazy answers. For example,

1: Without probable case, can the government park a drone over a house or building, or even a crime-ridden city block, and monitor for criminal activity with sensors that easily peer through walls?

2: Does one have a reasonable expectation of privacy within a fenced-in back yard?

3: Is following a personal injury plaintiff via drone considered stalking?

4: Can a business fly a drone over a competitor's work yard to observe it processes without recourse?

5: Is it legal to use technology (which is now available) to disrupt or even crash drones flying overhead? Would that be a tort?

In an upcoming Keogh Cox blog, we will advise of pending changes to the law that may begin to answer some of these questions. For now, we will observe that the word "drone" is no longer a boring word.