Attn Lawyers!...... Legal Question: Did I goof???

Discussion in 'General Chat' started by dl20, Mar 23, 2008.

  1. dl20

    dl20 Senior member

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    ok, So my friend is a lawyer and has been losing sleep over a mistake that he thinks he made. I suggested he post here as there are obviously many lawyers on the board. Any feedback you could provide he would greatly appreciate.

    "I had to file a lawsuit for medical malpractice in DC. Under the law, I was required to write a letter to defense council notifying them of my intention to file the lawsuit. The law provides that the notice letter must be served at least 90 days before filing the complaint. There is another provision that provides that if the notice letter is served within less than 90 days of the statute of limitations, time for filing shall be extended for 90 days. I served the notice letter on december 14th, the day the statute expired. I filed the complaint on March 14th, 91 days after the notice letter was served. When I read the 2 provisions together, i thought I had to wait 90 days and then file the complaint, but now I am thinking I had to file on the 90 th day which would have been march 13th. Do you think the compaint was timely filed? (These are new laws enacted in March 2007, and there are no interpreting cases)"

    Kind of a random post but as I said I'd appreciate any feedback.
    Thanks in advance
    DL20
     


  2. teddieriley

    teddieriley Senior member

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    Wait, you smell that?
    Sounds like he missed it. If he provided noticed on Dec. 14, that counts as the first day of notice. Count out 90 days from the 14th. The complaint could be filed as early as March 13, which happens to be the 90th day of the extension.

    Not good if the court doesn't accept the complaint. I would have called the court to confirm.
     


  3. dragon8

    dragon8 Senior member

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    Does the provision say business days or calender days?

    I don't have a calender in front of me but some months have 30 days and some 31 days and Feb has less than 30 days.

    Courts in CA do not throw out a complaint simply because the SOL has run it is the job of the responding party/counsel to bring it to the court's attention. If they do not in their first response it is considered waived.
     


  4. teddieriley

    teddieriley Senior member

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    Wait, you smell that?
    ^^Not that I know what provision he is speaking about, but I am almost certain that it would be 90 calendar days, not court days. Typically there are only 20 business days a month, not considering court holidays. Requesting over 4 months notice before filing a complaint is a bit extreme.
     


  5. dl20

    dl20 Senior member

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    Court accepted the complaint. I'm just wondering if it will get thrown out later on as untimely. Complaint is filed though and on docket.
     


  6. odoreater

    odoreater Senior member

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    Does the provision say business days or calender days?

    I don't have a calender in front of me but some months have 30 days and some 31 days and Feb has less than 30 days.

    Courts in CA do not throw out a complaint simply because the SOL has run it is the job of the responding party/counsel to bring it to the court's attention. If they do not in their first response it is considered waived.


    We plead statute of limitations as a defense in every single answer we file (regardless of whether there actually is a statute of limitations defense or not). I suspect most defense lawyers do the same, so it's unlikely that they're going to waive the defense. Whether they pick up on it or not is another question...
     


  7. Shikar

    Shikar Senior member

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    Medical Mal.....humm, I got served one of those a while back (my only one). It was on a patient i had actually STOPPED an offending drug on. She had read a billboard by a *helpful* Attorney, so she called and .....I got sued as i was her current doctor.
    This patient had been my longstanding patient for 9 years and was crying when she found out she had sued me, unfortunatly i told her i would not see her again for her care, and would be glad to guide her elsewhere.
    It was a pain to get rid of the suit.

    Regards.
     


  8. GQgeek

    GQgeek Senior member

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    Medical Mal.....humm, I got served one of those a while back (my only one). It was on a patient i had actually STOPPED an offending drug on. She had read a billboard by a *helpful* Attorney, so she called and .....I got sued as i was her current doctor.
    This patient had been my longstanding patient for 9 years and was crying when she found out she had sued me, unfortunatly i told her i would not see her again for her care, and would be glad to guide her elsewhere.
    It was a pain to get rid of the suit.

    Regards.


    I'm not a doc, and not even in the US where MM are a big problem, but reading this sort of thing irritates me. I don't understand people that bitch about healthcare costs on one hand, and then go around filing frivilous lawsuits as soon as the opportunity arises. I don't understand this woman you are describing... What the hell did she think was going to happen when she got a lawyer? [​IMG]
     


  9. j

    j (stands for Jerk) Admin

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    I'm not a doc, and not even in the US where MM are a big problem, but reading this sort of thing irritates me. I don't understand people that bitch about healthcare costs on one hand, and then go around filing frivilous lawsuits as soon as the opportunity arises. I don't understand this woman you are describing... What the hell did she think was going to happen when she got a lawyer? [​IMG]
    Probably that she was going to be suing the doctor who put her on the medication.
     


  10. GQgeek

    GQgeek Senior member

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    Probably that she was going to be suing the doctor who put her on the medication.

    I just don't understand how the identity of doctor she was filing suit against would not have been made clear in talks with the lawyer.
     


  11. Shikar

    Shikar Senior member

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    I just don't understand how the identity of doctor she was filing suit against would not have been made clear in talks with the lawyer.

    I agree with this, and even more obvious was my very clear note stopping the meds due to risk of side effects.
    What is the icing on the cake was the time, effort and legal costs I had to contend with to prove my innocence. Since it was a class action lawsuit more doctors involved apparently was in the litigants favour, so they wanted to keep me onboard for as long as possible.
    Medical practice in the US is defensive medicine at its finest. As a doctor you worry about the patient...and the attorney behind each patient. It leads to a huge wastage of monies in tests etc. Clinical opinion is nothing if there is no multi$ test to support the opinion.

    Regards.
     


  12. Shikar

    Shikar Senior member

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    Probably that she was going to be suing the doctor who put her on the medication.

    J, she had absolutly no side effects/problems from the drug, so why still sue the original doctor who had prescribed a FDA approved medicine for an approprite medical indication?

    Regards.
     


  13. lawyerdad

    lawyerdad Senior member

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    Sounds like he missed it. If he provided noticed on Dec. 14, that counts as the first day of notice. Count out 90 days from the 14th. The complaint could be filed as early as March 13, which happens to be the 90th day of the extension.

    Not good if the court doesn't accept the complaint. I would have called the court to confirm.


    Does the provision say business days or calender days?

    I don't have a calender in front of me but some months have 30 days and some 31 days and Feb has less than 30 days.

    Courts in CA do not throw out a complaint simply because the SOL has run it is the job of the responding party/counsel to bring it to the court's attention. If they do not in their first response it is considered waived.


    ^^Not that I know what provision he is speaking about, but I am almost certain that it would be 90 calendar days, not court days. Typically there are only 20 business days a month, not considering court holidays. Requesting over 4 months notice before filing a complaint is a bit extreme.

    Court accepted the complaint. I'm just wondering if it will get thrown out later on as untimely. Complaint is filed though and on docket.

    We plead statute of limitations as a defense in every single answer we file (regardless of whether there actually is a statute of limitations defense or not). I suspect most defense lawyers do the same, so it's unlikely that they're going to waive the defense. Whether they pick up on it or not is another question...
    I agree with teddieriley. A 90-day notice provision is almost certainly calendar -- not business -- days. Obviously the OP's friend should check that, but it would be highly unusual for such a long period to be measured in business days. Also, as tr notes, in California the fact that the complaint was accepted for filing would be meaningless. The statute of limitations is an affirmative defense, such that it has to be raised by the defense (it's not something the court clerk would check for or act on independently). As OE suggests, many firms always assert the statute of limitations as a matter of course, and it's one of the first things a halfway competent defense lawyer would look at.
    If it becomes a problem, given that it's a new statute, your friend might want to see if under DC law there is an equitable tolling or substantial compliance argument that could be raised to defeat a s/l defense.
     


  14. dl20

    dl20 Senior member

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    Thanks for the info guys, ill pass it along.

    DL
     


  15. j

    j (stands for Jerk) Admin

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    J, she had absolutly no side effects/problems from the drug, so why still sue the original doctor who had prescribed a FDA approved medicine for an approprite medical indication?

    Regards.

    I have no idea what people who read and comply with instructions on billboards are thinking at any time.
     


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