Missed Deadline in Med Mal Suit Results in Plaintiff Win in Legal Mal Suit

legal malpractice missed deadlineThe Connecticut Law Tribune reported that a jury ruled in favor of the mother of a deceased young man, who sued the estate of the attorney  who allegedly mishandled her son’s medical malpractice claim.

Background

Peter Gonzalez, 25, sought medical attention from Med-Help, a walk-in center based in Bristol, CT in July, 2010.

He later was admitted to Bristol Hospital, and died from complications of a perforated appendix that had been left untreated.

His mother, Tina Gonzalez, retained Enfield, CT attorney David E. Marmelstein to file a medical malpractice claim, even though Marmelstein reportedly had little, if any experience handling such matters.

Marmelstein allegedly “failed to timely and properly investigate and prepare the medical negligence claim to comply with Connecticut legal requirements.” As a result, the two-year statute of limitation expired before suit was filed.

Marmelstein died of a heart attack in October 2013, about 14 months after the statute of limitations expired.

Lawsuit and Outcome

Tina Gonzalez sued Marmelstein’s estate in Hartford Superior Court.

A six-person jury deliberated for two hours, before finding in her favor.

She and Marmelstein’s estate had reached a confidential settlement agreement prior to trial, payment of which was presumably contingent on the jury ruling in her favor.

It’s not known if Marmelstein had a legal malpractice insurance policy that defended and indemnified his estate for this matter.

Reaction

Gonzalez’ attorney told the Connecticut Law Tribune “This was a very unique case…Legal malpractice is somewhat of a rare claim. But, underneath this is a case within a case. We actually had to put on two cases: medical malpractice and a legal malpractice case.”

He added that the jury agreed that Gonzalez would’ve won the medical malpractice case, if it went to trial, and that Marmelstein was at fault for not filing a claim prior to the statute of limitations expiring.

“He [Marmelstein] got involved in a case that would have been better served by another attorney.”

The attorney also stated that Tina Gonzalez “should not have had this drag on for six years without a resolution. The fact that this is over and there is closure to her son’s death is satisfying to her and the rest of her family.”

Comment

Risk Management Rule #1 for every attorney should be “don’t dabble” in cases that are outside of your area of expertise. This is especially true for litigated matters like this one, because it’s easy to miss an SOL, as happened here, or commit another error, due to lack of understanding of the relevant rules of civil procedure.

The Lawyer.com profile of attorney David E. Marmelstein of Enfield, CT, who’s likely the same attorney that handled this matter, lists his practice areas as Construction, Consumer Protection, Environmental Law, Mental Health, and Land Use & Zoning.

None of these are remotely related to medical malpractice, which is one of the most complex practice areas. These cases generally take a long time and great expense to litigate, and are difficult to win, even if the fact pattern favors the plaintiff. Firms that specialize in Plaintiff Med. Mal. cases are best equipped to handle them

Every attorney should recognize his or her limitations, and refer matters outside of their expertise to local counsel who’s competent in such matters. Such counsel will often pay a referral fee, especially for matters like this one, where the damages are significant.

Referral is thus in the best interests of the referring attorney and the client.  

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About Curtis Cooper

Curtis Cooper is principal of Lawyers Insurance Group, a legal malpractice insurance brokerage that aggressively comparison shops on attorneys' behalf to find them the best terms available in the market. Contact him by phone: (202) 802-6415, or email: ccooper “at” lawyersinsurer.com.