Declarations and Exclusions

Who Knows Where the Time Goes? -- Attorney’s Pursuit of Alternative Remedies for Client Extends Time to Sue Attorney for Failure to File Original Claim on Time

An attorney’s efforts to correct the consequences of his admitted negligence have been held to toll the statute of limitations and to permit a client, somewhat later than expected, to file suit against the attorney for malpractice.

Noralee Gold hired attorney I. Donald Weissman to sue Gold’s doctor for medical malpractice. Weissman did not file the complaint before the statute of limitations expired. He placed the blame on his attorney service. (Other recent examples of the pitfalls of relying on others to file papers in a timely manner are reported …..) Whoever may have been at fault, Weissman admitted the failure to make a timely filing in October 1998.

After revealing the error, Weissman coordinated with Gold’s daughter (herself an attorney in Illinois) in an effort to pursue the attorney service for its contribution to the loss, and to continue to pursue the allegedly negligent doctor via a claim to the Board of Medical Quality Assurance (BMQA). Ultimately, however, Gold filed suit against Weissman for his negligence in January, 2000.

Ordinarily, the statute of limitations on a claim against an attorney for professional negligence expires one year after the client discovers, or reasonably should discover, the error. Because Gold did not sue him until January 2000 -- nearly a year and a half after he notified her of his error in October 1998 -- Weissman moved successfully for summary judgment, on the ground that the claims against him for his untimeliness were themselves untimely.

The Court of Appeal reversed the judgment for Weissman, holding that the time in which Gold could sue him was extended by Weissman’s own continuing efforts to pursue other remedies on her behalf. The Court relied on a statutory provision that does not start “the clock running” so long as the attorney continues to represent the client in the matter in which he or she was negligent. The Court rejected Weissman’s arguments that the claims against the attorney service or against the doctor through the BMQA should be considered “different” from the original retention to sue the doctor for negligence.

Here, Weissman continued to explore possible compensation from the attorney service in the year before appellant filed her lawsuit. He also agreed to prepare a BMQA complaint in response to the question by appellant’s daughter of what recourse remained against appellant’s doctor other than the time-barred malpractice lawsuit. Both appellant’s unfiled lawsuit and BMQA complaint thus arose from the same event: her doctor’s malpractice. Moreover, the lawsuit and BMQA complaint shared a common purpose: to permit appellant some measure of redress for her injuries and thus some relief -- psychic from the BMQA complaint, financial from the lawsuit -- and possible closure. The distinctions Weissman tries to draw between the lawsuit and the BMQA complaint—different forums and types of relief—do not change the fact that the same medical malpractice gave birth to both proceedings, each designed, in its own way, to salve appellant’s one set of injuries. Thus, Weissman’s work for appellant after she discovered his malpractice arose out of, and related to, the same general set of facts as the matter he negligently handled.

The decision in Gold v. Weissman (January 12, 2004), Case No. B160578, can be found at these links in PDF and Word formats.

Only the Innocent Need Apply -- Criminal Defendant's Malpractice Claim Against Defense Counsel Rejected

In a claim for legal malpractice, the disgruntled client is generally required to prove that the prior representation would have produced a better result but for the negligence of the attorney. A new decision from California's Fourth District Court of Appeal reminds us that a convicted criminal can only prevail against his former defense attorney if he can prove that he was wrongly convicted, i.e., that he was in fact innocent of the crime.

Lindsel Redante was convicted on multimple charges of sexual offenses involving minors. Attorney Alan Yockelson was appointed to represent Redante in an appeal from his conviction. The appellate court affirmed the conviction, and the California Supreme Court decined review. Redante demanded that Yokelson draft a petition for habeas corpus. Yokelson did so and forwarded it to Redante for his use. Redante then represented himself in a series of unsuccessful habeas corpus cases in state and federal courts. Dissatisfied, Redante then sued Yokelson seeking damages for malpractice. The trial court granted judgment in Yokelson's favor, which the appellate court confirmed.

The Court of Appeal points out the following grounds on which it found no potential liability against the attorney:

♦ An appellate attorney need not make every argument the client demands. He is only obliged to raise those arguments that are potentially meritorious.*

♦ A criminal defendant "has no constitutional right to counsel in habeas corpus proceedings, and consequently, no right to effective assistance of counsel."

♦ A criminal defendant who sues for legal malpractice must prove his actual innocence of the underlying criminal charge. A non-innocent defendant cannot claim to have been harmed by an attorney's negligence. Redante never alleged or attempted to prove he was factually innocent in the context of his malpractice claim. Even if Yokelson had committed an error -- which the Court concluded he had not -- that error did not place Redante in any worse position than his own criminal conduct warranted.

The decision in Redante v. Yockelson (October 30, 2003), Case No. D041480, can be found at these links in PDF and Word formats.

Psychiatrist May Be Liable for Harm to Third Parties Caused by Dangerous Patient Released for Lack of Insurance

Under California law, a treating physician or psychiatrist may be held liable to third parties if he or she negligently authorizes the release of a patient who is know, or should be known, to pose a danger to those third parties. Generally, it has been assumed that the injured victim must be either individually identifiable as one who would be endangered by the patient’s release, or at least a member of a readily definable class of likely victims. The latest decision in this area from the California Court of Appeal for the Second District (Los Angeles) appears to broaden the negligent professional’s potential liability. The Court summarizes its holding as follows:

We hold that a treating psychiatrist who releases a patient simply because that patient has no insurance, when that patient has been involuntarily committed . . . as a danger to himself and others, may be liable to the patient and any person that patient injures.

(Italics added.)

Joshua Lee had been involuntarily committed for psychiatric conditions manifesting in violent and suicidal tendencies. While committed, Lee was physically restrained to protect himself and others. He was discharged, allegedly because of a lack of insurance. On discharge, Lee was not warned of the potential consequences of not continuing his medication regimen. Shortly thereafter, he attacked and killed the plaintiffs’ 66-year old mother. Arrested for the killing, Lee hanged himself in his cell. Suits were filed against the doctor who ordered Lee’s release, claiming negligence. The trial court dismissed the case but the Court of Appeal reversed and remanded the matter for trial.

Although the appellate court engages in a more or less traditional duty analysis in reaching its conclusions, there is no mistaking the moral judgment that the court is passing on the defendants, assuming the allegations of the complaint are ultimately proven to be true:

Here, assuming the allegations are true, Lee, who had been restrained with ‘bilateral ankle and wrist restraints’ after striking a security guard, was enough of a danger to others that defendants had requested an additional 14 days commitment so that Lee could receive intensive psychotherapy they felt was necessary. Nevertheless, without receiving any therapy, and without any notification to any other mental health care provider or the police, Lee was turned loose into an unsuspecting community. The ostensible reason: Lee had no insurance. It is foreseeable that someone who is dangerous to others is liable to act out and be dangerous. That Lee did act out and kill plaintiff’s mother is not disputed. It is alleged that Lee’s killing of plaintiffs’ mother was due to defendant’s release of Lee because of monetary reasons, not because Lee was no longer a danger to others. Preventing future incidents is also furthered by imposing a duty to the injured party. [Footnote omitted.] The insurance availability question is a non-issue in this case because all that is being required is that doctors make decisions on medical [footnote omitted] not monetary grounds. Finally, there can be no moral justification for ejecting upon society, without notice, a person who is dangerous to others merely because he is uninsured

Elsewhere in the opinion, the Court rejected a number of arguments suggesting the defendants were protected by statutory immunities.

The decision in Bragg v. Valdez (Aug. 18, 2003) Case No. B158819, can be found at these links in PDF and Microsoft Word formats.

Hospital Entity is Entitled to Assert Conditional Privilege for Communications Concerning Grant of Staff Privileges

The California Supreme Court has resolved a dispute among the Courts of Appeal over the interpretation of the privilege extended by California Civil Code §43.8. That statute creates a privilege for communications to a hospital or medical staff when the communication is “intended to aid in the evaluation of the qualifications, fitness, character or insurability of a practitioner of the healing or veterinary arts.” The Supreme Court has held:

1. That the term “person” as used in the statute extends the privilege to an entity, such as a hospital corporation, and not merely to natural persons; and

2. That the privilege is “qualified” rather than “absolute,” i.e., that the communication is privileged and cannot form the basis for a later lawsuit so long as it was not made with malice.

The case arose when Dr. Allen Hassan applied for staff privileges at Roseville Community Hospital. A former employer, Mercy American River Hospital [“Mercy”], forwarded a report of a telephone conversation with the medical director of another hospital some 23 years earlier, in which Dr. Hassan was described as a “militant” who was “too personally involved with the problems of the misfortunate and oppressed” and a “manipulator” of coworkers and supervisors. When staff privileges were denied him at Roseville, Dr. Hassan sued Mercy for defamation and related torts. The trial court granted judgment in favor of Mercy, based on the §43.8 privilege; the Court of Appeal affirmed, and the Supreme Court agreed.

The decision in Hassan v. Mercy American River Hospital (Aug. 18, 2003), Case No. S106256, can be found at these links in PDF and Microsoft Word formats.

Time to Sue for Medical Malpractice Begins Only When Second Surgery Discloses Negligent Cause of Injury

Under California Code of Civil Procedure 340.5, a person injured by medical negligence must commence litigation within three years of the date of injury or within one year of the date that the victim "discovers, or through the use of reasonable diligence should have discovered" the injury, whichever comes first. The Court of Appeal for the Second District has held that when the cause of the injury is not discoverable without surgery, the time to sue does not begin to run until that surgery is performed, even if the injured plaintiff subjectively suspected negligence long before.

Doreece Artal underwent laparoscopic pelvic surgery, and awoke with pain in her throat. Ms. Artal had known she would be intubated for anesthesia and was warned that a mild sore throat might be present for the first day or two, but her throat pain persisted and remained severe long after the surgery. Although she suspected that the anesthesiologist, Dr. Allen, might have performed the intubation negligently, Ms. Artal consulted specialist after specialist for more than 18 months without determining a cause of her pain. Finally, exploratory surgery revealed that Ms. Artal's thyroid cartilage had sustained a fracture, and that the likely cause was negligence at the time of the original anesthesia. Ms. Artal filed suit slightly less than a year after the discovery of the fracture, but well over a year after the medical records showed she was suspicious that Dr. Allen was responsible.

The trial court dismissed the case on the theory that Ms. Artal suspected and "should have" discovered the negligent cause of her harm more than a year prior to filing suit. The Court of Appeal reversed the dismissal. The court reasoned that the negligent cause of the injury could only have been discovered through further exploratory surgery, and that the time to sue should not run until that surgery was actually performed.

It was not until the exploratory surgery, which revealed the thyroid cartilage fracture, that Artal had reason to suspect Dr. Allen had negligently performed the intubation. Although a malpractice litigant is required to pursue her claim diligently through discovery of the cause of her injury, Artal’s duty of diligence did not extend to submitting to surgery sooner in order to discover the negligent cause of her injury.

(Italics in original.)

The decision in Artal v. Allen (Aug. 14, 2003) Case No. B159581, can be found at these links in PDF or Microsoft Word format.