Interrupted by Silence: Medical Malpractice Prescription

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.

“Meet or Beat” deadlines

Deadlines are not “suggestions” when it comes to law. Have in place a robust calendaring system and make sure your office is in compliance. This is one place where redundancy is not a bad thing.

Be smart

Remember that there are many good reasons not to take cases. The potential case may not involve an area of law with which you are familiar. You may not have adequate time or resources to properly devote to the case. Your history with the other parties or their counsel may not suggest the case as a good fit. Trust your instincts here. If you have meaningful reservations about taking the case, turn it down no matter how profitable it could prove to be.

Respect Your Clients

Do not ignore your client. Return your client’s phone calls. Keep the client informed. You work hard. Frequent communication with your client shows them that. They will be less likely to sue if they know you worked diligently on their behalf.

Document Your Work

More information is better than less. If you do not document your work, a client has cause to challenge the work you performed. Proper documentation also can diffuse the “he said, she said” trap attorneys often find themselves embroiled in after something has gone wrong.

Avoid Conflicts of Interest

Ensure that you have a comprehensive conflicts-check procedure. Failure to identify conflicts ahead of time can create unnecessary complexity. The rules allow waiver of many conflicts when they will not impact the representation.

Take Care of Yourself

Nothing can invite more disaster upon an attorney than substance abuse and/or debilitating stress. If either of these conditions apply to you, there are plenty of ways to get help-whether from friends, family members, or health care providers. You owe it to yourself, your family and your clients to address these issues. The Louisiana State Bar Association has created a Judges and Lawyers Assistance Program (JLAP) to help you through these issues. http://louisianajlap.com/

Thorough Research and Investigation

It’s not easy getting it right so spend the time it takes. Consult with others when you are not sure. Citing law that is no longer applicable is not only embarrassing but can affect your credibility. Judges remember lawyers who submit pleadings with improper or inadequate research.

Pursuing Unpaid Fees

Fully consider the ramifications when pursuing unpaid fees. Try to work it out. Clients have been known to find themselves suddenly dissatisfied with their representation when sued for an unpaid legal bill.

Benjamin Franklin is also known for his image plastered across the $100 bill. Putting in place reasonable procedures may keep more of them in your pocket.

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.

“Prescription” is the timeperiod in which a litigant must file suit, or the action is barred. Oneof the first lessons a Louisiana law student learns is the importance ofdetermining the prescriptive period of a cause of action. Filing a causeof action too late is fatal. A recent decision from the Louisiana FifthCircuit Court of Appeal reads like a law school exam and illustrates thatdetermining which prescriptive period applies is sometimes the key to the case.

In DeFelice v. FederatedNat'l Ins. Co., 18-374 (La. App. 5 Cir. 7/9/19), mold was discovered inplaintiff’s home on June 10, 2016. Plaintiffs notified their insurancecompany, who hired a mold remediation company to inspect the home. Whenthe home was inspected on June 22, 2016, the inspector verbally informedplaintiffs that the home was safe. On the same day, a separate moldinspector collected samples. The second mold inspector issued a report on June23, 2016 advising that mold remediation may be necessary. This reportspecifically stated that “certain mold and mold spores in buildings and housingcan result in mild to severe health effects in humans and can deteriorate thestructure of the dwelling resulting in content or structure damage.” Thesecond report was provided to the plaintiffs.

Plaintiffs continued to live inthe home. In August of 2016, plaintiffs’ infant son was born. Shortly thereafter, the infant began to experience breathing issues and wasdiagnosed with a lung condition by December of 2016. Plaintiffs vacatedthe premises in January of 2017.

More than one year after receiptof the second mold report, plaintiffs filed suit on July 24, 2017 against theirinsurer and the inspector who advised that the home had no mold problems. Plaintiffs raised claims for property damage, damage to the health of theparents, damage to the health of the minor child, and consortium claims onbehalf of the parents for the damage to the minor child.

The DeFelice court foundthat prescription began to run on June 23, 2016 with regard to the parents’individual and property damage claims. Because suit was not filed withina year of the second mold report advising of possible health and propertydamages, the parents’ individual health claims and the claims for propertydamage were prescribed under the one-year period set by Civil Code article3492.

The minor child was not bornwhen the report was issued on June 23, 2016. Plaintiffs argued that thoseclaims were brought within a year of the child’s birth, and were thereforetimely. The DeFelice court agreed and held that prescription could notbegan to run until the child was born. While Louisiana law provides that a childis a “person” upon conception, this “legal fiction” applies only to protect theinterests of the child. The court reasoned that a finding that prescriptioncommenced prior to birth would not “protect the interests” of the child. While the parent’s claims were prescribed, the claim filed on behalf of theinfant, and any claims that the parents had related to their infant’s healthcondition, were timely.

The court's analysis inDeFelice reminds that determining which prescriptive period applies to whichclaim is often the most important issue.

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.