NUZZO & ROBERTS PROFESSIONAL NEWSLETTER

Transcription

1 NUZZO & ROBERTS PROFESSONAL NEWSLETTER Volume 1 No. 1 December 2004 EXPERT TESTMONY Under Some Circumstances, A Judge Can Use His Own Expertise to Assess Standard of Care in A Legal Malpractice Case T he Connecticut Supreme Court in Dubreuil v. Witt, 271 Conn. 782 (2004), affirming the Connecticut Appellate Court, held that the trial court properly concluded that the defendant attorney breached the standard of care, despite lack of expert testimony. This was a legal malpractice action tried to the court arising from the defendant attorney s representation of the plaintiffs in a collection action. The plaintiffs claimed that the defendant failed to attend a pretrial conference and short calendar argument on a motion to set aside judgment of nonsuit, resulting in a judgment of foreclosure. The court concluded that the defendant breached the standard of care, despite the lack of expert testimony as to the appropriate standard of care. The court found that expert testimony was not necessary because the defendant s conduct was such an obvious and gross want of care and skill that the neglect would be clear to a lay person. The Connecticut Appellate Court found that the trial court erred in determining that expert testimony was not necessary. However, the court found that despite this, it was not improper for the trial judge to determine that the defendant violated the standard of care. The court determined that a judge is aware of the rules of practice and the standard of care that applies to attorneys practicing in that court and, therefore, does not need expert testimony to rule on the standard of care. The Connecticut Supreme Court affirmed the Appellate Court s findings. EDTOR S NOTE: The Appellate Court, in a footnote, stated that its holding was limited to the facts of this case and that it was not implying that a judge is an expert in every area of the law or that expert testimony is not needed in a legal malpractice case tried to the court. Despite this caveat, plaintiffs' attorneys may attempt to use this decision in any case in which the judge has expertise or knowledge regarding the area of law at issue to circumvent the need for expert testimony in trials to the court.

2 STATUTE OF LMTATONS - MEDCAL MALPRACTCE 90-Day Extension of Time Applies to Statute of Repose n Barrett v. Montesano, 269 Conn. 787 (2004), the Connecticut Supreme Court held that the automatic 90-day extension under a may apply to extend the three year statute of repose provision under Conn. Gen. Stat This medical malpractice case arose from injuries related to a child s birth on November 14, Within three years of the subject's birth, the plaintiffs petitioned the court for the automatic 90-day extension under a, and commenced the action on February 1, The defendants moved for summary judgment on the ground that the action was time-barred by the three year statute of repose, which was granted by the trial court. The Connecticut Supreme Court reversed the decision. The court determined that the legislature, the courts, and the Practice Book all use the term statute of limitations as also encompassing the term statute of repose and, thus, ruled that the 90-day extension applies to both the two year discovery provision and three year repose section under The court further stated that the 90-day extension period is for the benefit of the health care provider, not the injured plaintiff, and it serves to discourage plaintiffs from bringing claims that have not been properly investigated. The additional burden to conduct a reasonable inquiry necessitates the additional 90 days in which to do so, which is essential to ameliorate the harsh consequences of the occurrence rule. NOTES Legal Malpractice - Ripeness EDTOR S NOTE: t now appears that defense attorneys can no longer rely on the three year absolute drop dead date as a defense in a medical malpractice case, as plaintiffs may seek to invoke the additional 90-day window. On the one hand, a serves to protect health care providers from frivolous claims, while at the same time, it may allow for a late claim that would otherwise be time-barred. n Le v. Simon, 37 Conn. L. Rptr. 825 (2004), the defendants moved to dismiss the plaintiff s legal malpractice action on the ground that the underlying case was still pending, and, therefore, the legal malpractice action was not ripe for adjudication. The court agreed and found the case was not ripe because the court could not fashion an appropriate remedy for the plaintiff until the underlying employment discrimination case was resolved. t should be noted that the Connecticut Supreme Court has previously held in Mayer v. Biafore, Florek & O Neil, 245 Conn. 88 (1998), that the plaintiff was not required to obtain a prior determination that the statue of 2

3 limitations had run on his underlying action as a condition precedent to his legal malpractice action, and that to require a determination of the underlying rights in all cases would unduly restrict the plaintiff's remedy against the allegedly negligent lawyer. Medical Advice by An Attorney T he Connecticut Appellate Court in Wooten v. Heisler, 82 Conn. App. 815 (2004), held that an attorney who does not advise his client as to the best treatment and testing needed to diagnose and document his injuries from a motor vehicle accident has not committed malpractice. The court, citing the professional rules of conduct, stated that an attorney has a duty to act with diligence, to keep the client informed, and to provide advice on legal and nonlegal matters that are relevant to the client s situation. Those obligations, according to the court, do not extend to offering medical advice to a client, particularly for the purpose of increasing the value of a negligence claim. However, the court pointed out that an attorney may commit malpractice if he or she does absolutely nothing to protect the client s interests. Tolling the Statute of Limitations - Medical Malpractice n Rosato v. Mascardo, 82 Conn. App. 396 (2004), the Connecticut Appellate Court determined that neither the continuing course of conduct doctrine nor the continuing treatment doctrine tolls the two year statute of limitation provision in a medical malpractice action after the plaintiff discovers the injury. This medical malpractice case arose from a surgeon s unauthorized procedure of inserting silicone breasts in the plaintiff patient without her consent in the context of a bilateral mastopexy surgery that the plaintiff had consented to. The court found that the plaintiff had discovered the injury only a few days after the tortuous act occurred and, thus, should have brought suit within two years of this discovery date. The court stated that the tolling doctrines are generally only applicable under circumstances where it may be impossible to pinpoint the exact date of a particular negligent act or where the negligence consists of a series of acts or omissions. Certificate of Good Faith n Tutunjian v. Bridgeport Hospital, 37 Conn. L. Rptr. 833 (2004), the court determined that the plaintiff s claim that she was injured as a result of the hospital s alleged failure to provide the plaintiff with physical assistance in getting to the bathroom when such assistance was required was a medical malpractice claim that required the plaintiff to file a certificate of good faith. The court stated that not every action against a hospital sounds in medical malpractice, but that in this case, the decision to allow the patient to engage in even a routine activity where there was a 3

4 potential risk of harm involved an assessment of the patient s condition at the time and, thus, was an exercise in medical judgment. Fiduciary Duty n Sorrentino v. Weber, 37 Conn. L. Rptr. 498 (2004), a chiropractor brought an action against his patient s attorney for failing to satisfy his unpaid bills after the patient s personal injury action settled. The court determined that although he was not the one who provided the chiropractor with the letter of protection agreeing to satisfy the bills from the proceeds of the personal injury action, the attorney may still be liable to the chiropractor as a fiduciary. The court indicated that attorneys owe a fiduciary duty to protect the interests of a third person who have a claim against settlement funds. Expert Testimony - Reasonableness of Fees n a case of first impression, the Connecticut Appellate Court in St. Onge, Stewart, Johnson and Reens, LLC v. Media Group, nc., 84 Conn. App. 88 (2004), held that whether an attorney or law firm was required to present expert testimony to establish the reasonableness of attorney fees was to be decided on a case by case basis after careful examination of the circumstances of the case. The court determined that under the circumstances of this case, expert testimony was required because of the complexity of the issues. WE ARE READY TO HELP N uzzo & Roberts has highly skilled and trained lawyers eager to serve you in the following areas. Please call us or send us an . Professional Liability: contact Rick Roberts at rroberts@nuzzo-roberts.com; Tony Nuzzo at anuzzo@nuzzoroberts.com; Fred Murolo at fmurolo@nuzzo-roberts.com or Karen Murolo at kmurolo@nuzzo-roberts.com Bad Faith and Coverage ssues: contact Tony Nuzzo at anuzzo@nuzzoroberts.com or Karen Murolo at kmurolo@nuzzo-roberts.com Third-Party Claims and ndemnity: contact Karen Murolo at kmurolo@nuzzo-roberts.com or Rick Roberts at rroberts@nuzzo-roberts.com State and Federal Appellate Work: contact Karen Murolo at kmurolo@nuzzo-roberts.com or Fred Murolo at fmurolo@nuzzo-roberts.com Trials: contact Fred Murolo at fmurolo@nuzzo-roberts.com; Karen Murolo at kmurolo@nuzzo-roberts.com; Rick Roberts at rroberts@nuzzoroberts.com; Tony Nuzzo at anuzzo@nuzzo-roberts.com; Robert Chomiak, Jr. at rchomiak@nuzzo- 4

5 roberts.com or Nicole Chomiak at Complex Litigation: Tony Nuzzo at Rick Roberts at or Fred Murolo at WHEN N DOUBT, CALL US We are only a phone call away. f you have any questions, call us!! NUZZO & ROBERTS, L.L.C. P.O. Box 747 One Town Center Cheshire, CT Phone: (203) Fax: (203) or 5