April 14, 2023 • By Dennis Beaver
Lawyers have a duty to advise their clients of potholes they might not be aware of. As you will see, at times this becomes complicated, when “who is the client?” becomes a difficult question to answer.
When the lawyer feels that a certain ethical course of conduct must be undertaken, but his wife – who is also his paralegal – disagrees, the stage is set for a conflict of friends and family, as you will see.
Retired teachers Helen and Ray (all names have been changed) are decades-long friends of lawyer Steve and his wife, Susan. Helen and Ray consider Steve to be their family attorney — they have never signed a retainer and Steve has never charged for the occasional bit of legal advice.
Both Helen and Susan are from an Asian country where saving and maintaining harmony – avoiding discord – are cultural norms.
Helen underwent total thyroid removal surgery with an excellent outcome at a well-respected teaching hospital and returned home to be followed by her own physician, as these operations require close monitoring of important blood chemistries.
But she was not properly monitored, and several days after returning home, began to hallucinate, lost consciousness, experienced hundreds of seizures and fell into a coma. Blood chemistries were obtained upon her admission to the hospital that were completely abnormal.
Helen was the victim of gross medical malpractice.
She is horribly impaired, essentially in a vegetative state, having suffered brain damage. It is evident that she will require expensive skilled nursing care for the rest of her life. She is in her mid-70s, and her husband, mid-80s, is basically in denial.
To add insult to injury, the local neurologist told her husband and adult children that she will never improve and recommended stopping life support. But then, “We were told to have the brain scans sent to physicians back East and they said not to, so we did not,” said their son.
It is a decision that friends and other family members deeply regret.
Steve sent me a video of Helen in her longterm care bed. I could watch it for only a couple of minutes, it was that tragic.
When visiting her at the hospital, the head nurse told him, “This should not have happened. She will remain like this and it was all preventable. There are reasons to stop supportive care, when failing to do so keeps the patient and family in a state of misery.
“In my over 30 years in neurological nursing, the danger of a ‘hopeful’ medical opinion such as the family received from physicians thousands of miles away has proven itself true. Their advice has condemned a family to potentially years of misery and regret.”
Obtain medical records at once
When first taken to the ER, attorney Steve told Ray, and their adult son – who never had an attorney-client relationship with Steve, “Get copies of the chart and all medical records now. This should not have happened!”
He also sent them a softly-worded email saying the same thing and offered to refer them to a med-mal attorney. No response.
Two months later, he sent another email urging the same, which upset Susan who told him to leave them alone. Steve tells her that he does not want to find himself in a position of being blamed – and sued – for their friends and children not seeking counsel or filing suit in a timely manner, even if it is just to preserve the statute of limitations for medical malpractice.
Steve believes that he has a duty to do what he can so they do not blow the statute or fail to get important records now and at least have a consult with a med-mal attorney. He wants to send them a more urgent email, but his wife advised he leave them alone.
Retired medical malpractice attorney
Judy “G,” a retired Los Angeles med-mal attorney offered these observations:
“Steve’s duty as a lawyer is to do what he thinks he is ethically required to do, rather than refrain because his wife doesn’t want to bother their friends.
They need to be made aware of statutes of limitation for various actions, including possible wrongful death. So whether these horses want to drink the water or not, at least he’s trying to get them to the well.”
Retired Los Angeles County Judge
Retired L.A. County Superior Court “M.A” offered this:
“Steve is volunteering legal advice when he says, ‘get the chart.’ He sort of protects himself by sending an email offering to recommend a med-mal attorney. He should have added language like, ‘I may be a lawyer, but I cannot represent you in this situation, because I am not qualified to handle medical malpractice cases. But I think you need a medical malpractice lawyer and if you want, I can give you some names.’
“To really insulate himself, he should go further and say something like, ‘Don’t wait around. Take action soon. There are statutes of limitations that, if you miss them, will cut off your ability to sue. But definitely he should put it in writing, even to his closest friend, his sister, anyone. You cannot be too careful.”
What Kind of a Lawyer Do You Want?
This tragic situation raises important questions: Just what kind of a lawyer do you want?
Someone “gutsy” who will stand up for what is right, and has the courage to tell you how much trouble you will face by not following their advice – or Casper Milquetoast, Esq., a wimp with a law degree – of which the legal profession has its share.
Some clients – or folks who might consider themselves clients – are frozen in fear, taking no action when it is critical they act now.
Steve took that step to one final time advise them about those potholes in the road – as that was his duty as a lawyer, despite the potential for creating discord.