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Attorney Negligence-Should I pursue? Warning: Long Post

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Latest post Thu, Nov 26 2009 8:28 PM by tagalong68. 1 replies.
  • Thu, Nov 19 2009 4:33 AM

    • moovyz
    • Not Ranked
    • Joined on Thu, Nov 19 2009
    • PA
    • Posts 1

    Attorney Negligence-Should I pursue? Warning: Long Post

    I'd like to hear from anyone about this matter... an opinion from a lawyer would be ideal but I would love to hear from anyone about this matter. First, a synopsis... it looks lengthy but really it's a 4-year condensed version... I accepted a WC settlement, based on my attorney's (and the mediator's advice). It was suggested I take the settlement because the WC insurer had 2 physicians that agreed I had a 0 disability rating and had reached Maximum Medical Improvement. One of those doctors (the one I saw first after injury) never examined me, nor diagnosed the actual annular tear to my L4-L5 disc (I only was seen by his PA and he said it was a strain... he performed an MRI but no one has ever seen it... a software issue will not allow anyone to view it) . That doctor released me but suggested I get a 2nd opinion.  (the WC insurer sent me to a 2nd orthopedic surgeon) I got the 2nd opinion, a new MRI showing a tear, and began injection therapy and PT, with no improvement. The other physician who said I had a zero rating, directed through an IME (Independant Medical Evaluation), ordered an FCE which he said showed I met Light Duty and based on that FCE (Functional Capacity Examination) he agreed with the 0 disability rating that the first doctor originally said. After being denied 2 times by SSDI (just in the past year), I obtained the FCE and it actually says that I did NOT meet light duty standards. My lawyer either never asked for this document or did not read it. It looks like it might have been hidden by the insurer since the test results were addressed to them.   So, as you can imagine, I am outraged. EVERYTHING would likely have been different if I had seen the FCE results. First of all, I would not have settled. It was never my intention to settle. I told my lawyer, who I hired when WC Insurer stopped paying for everything (they stopped paying when my treating physician said "surgery") that I only wanted my health back. In the midst of this 3 year battle, my lawyer retired and turned it over to a junior partner. After a year of the insurer refusing to pay (luckily I had my BC/BS to cover costs) we went before a State Judge asking for sanctions against the insurer. The judges exact words were "either get him the surgery or mediate this case now. You've made this poor guy wait for 2 years in tremendous pain. You DO NOT want me ruling on this case!" (directed at the insurer's lawyer). A fast-track mediation took place 2 weeks later. My "new" lawyer said prior to the mediation "do not piss them off, these are the ones who pay the bills". During the mediation, when the first doctor was mentioned (the one who didn't examine me) I attempted to question the info. My lawyer grabbed my arm and said "not now, we'll talk later". The mediator said that I would get $140,000... distributed as follows... $35,000 to my lawyer, $20,000 for a likely Medicare offset at a later date and the rest to live on until I got approved for SSDI. I took the settlement because I was told by both my lawyer and the mediator that "this is how it works. They stop paying, force a settlement and you get your Private Insurance and enough $ to get by during the 2-year SSDI waiting period". I took the settlement based on these opinions nad the fact that I was tired of fighting. Now I'm struggling to get my SSDI (I will likely be approved soon since we have all the hidden and correct documents now). But the settlement actually says that the FCE shows I was capable of Light Duty. My lawyer drew up that settlement!. The actual FCE says "does NOT meet Light Duty Demands set by the Federal Government". And again, the FCE is addressed to an RN working for the WC insurer. So either she hid it from everyone and my lawyer never asked for it (would it have been a "Discovery" issue or does that not apply?) or my lawyer saw it but didn't read it. I've looked up info about what I have to prove to pursue Lawyer Negligence. Out of 14 items, any one of which is supposedly grounds to sue, my lawyer got 5 failures... (those with YES apply)   
    • Failing to file a claim before the statute of limitations expires  
    • Missing a deadline or failing to take action within time limits
    • Failing to perform adequate research  &a... YES
    • Making mistakes in documents or contracts  &... YES
    • Not subpoenaing witnesses or obtaining other evidence for trial  &nbsp... YES
    • Mishandling client funds
    • Failing to inform a client of a conflict of interest
    • Stealing money from client's trust fund or law firm's trust account
    • Misappropriating a client's settlement proceeds
    • Negligently handling a client's case because of incompetence or inexperience &amp... YES
    • Breaching a fiduciary duty
    • Failing to advise a client of a settlement offer or other important information &nbsp... YES
    • Failing to prosecute a case
    • All other unethical or fraudulent conduct by a lawyer

    So, do I go after my lawyer? If so, what do I ask for? It's likely I wouldn't have settled at all, at that time. If so, knowing what I know now, I wouldn't have settled for a 2-3 year wage equivalent. I also did not have surgery, based partly on these doctor's opinions. Now I have 3 bad discs! The one above and below have deteriorated. Obviously, the very minimum I will accept is the $35,000 fee, as he didn't earn it. But I would only accept that if I choose not to sue, only if it was offered by my ex-lawyer. And that would only be to bring an end to all this. It's been going on 4 years now and I'm beat. Secondly, does anyone feel that an action can be brought against the WC insurer? The settlement agreement supposedly releases them (note: this all took place in NC where, evidently, a WC insurer CAN dump the medical liability off on the Private Insurance. In PA, where I live now, it's against the law). If it can shown (or suggested as it's going to be their word against ours) that the FCE was never given to my lawyer, and the "company paid" doctor fudged the results, wouldn't that be fraud?

    I know nothing about any equations to calculate into all this. But seemingly it can be argued that I have 25+ years of lost wages (assuming I did get surgery then and went back to work. BTW, surgery is NO LONGER an option!). My wife wants me to go for extreme pain and suffering, which is not a stretch. I am in medium to severe pain, 24 hours a day. I eat Oxycontin by the handful (not really, but it's substantial). I can not sit, walk, drive, do chores... I spend each day adjusting my position every 15 minutes. I take one pill to knock me out and another to keep me asleep. But even then, I get less than 6-7 hours a night.

    Please, anyone, offer advice, suggestions, amounts... any and all opinions are invited.

    Thanks, in advance!


  • Thu, Nov 26 2009 8:28 PM In reply to

    • tagalong68
    • Not Ranked
    • Joined on Fri, Sep 4 2009
    • IL
    • Posts 3

    Re: Attorney Negligence-Should I pursue? Warning: Long Post

    You can sue your attorney for actual damages you've suffered.  Read this following,particularly the last part about what you have to prove to sue for malpractice.  Keep in mind that most attorneys will take a legal malpractice/medical malpractice case on a contingentency basis...but they will also take about 1/3 of any recovery.  And, most want a minimum amount of loss before they will sue, i.e., $100,000.00 for an example.  If  you can meet these criteria then sue the dope because that is the only way we have to get incompetent and corrupt attorneys out of the system.  There are a lot of them out there so do your research of the attorney first before hiring him! 

    I'm fixing to do the same thing to a guy that threw me under the bus - so do your homework, query and interview any new attorney, get referrals, etc.

    Good luck - a stupid lawyer can put you right in the dumpster!!!

    Q: Can I ask my lawyer for a copy of the settlement check?


    • A: You have an absolute right as the client to see a copy of the settlement check, as well as to review a copy of the settlement breakdown sheet before the check is deposited. Typically, the insurance company check has both your and your attorney's name on it and, therefore, you would typically have to endorse the check before it could be placed in your attorney's client trust account. Ask your attorney to provide you with a copy of the actual settlement check forwarded to him by the insurance company, as well as a copy of all checks written totaling the full amount of the settlement.


    Q: How can I challenge my attorney's expense reports?
    • A: Your attorney is presumably deducting the expenses from the settlement or the money that you are receiving, so ask for documentation. Your attorney should be able to provide you with copies of invoices, bills and other receipts to demonstrate that these payments were made on your behalf. If you don't receive the documentation, don't permit them to be deducted from your settlement.


    Q: How do I find out if a lawyer has been disciplined?
    • A: Contact the State Bar Association of your state and ask what information they maintain on the attorney in question. In some states, they will not tell you if there are any "grievances", but they will let you know whether there has been any public record of discipline or other action taken by the Bar. You might also try asking the attorney directly.


    Q: How do I get a new lawyer?
    • A: The attorney-client contract commonly referred to as the "retainer agreement" doesn't prevent you from replacing your current attorney with some other attorney. If you consult with a new attorney and decide to retain the new attorney, you need never personally contact your prior counsel.

      Typically, the new lawyer will have you explain the reasons for your wishing to change counsel. It is important for all lawyers to find out why it is you're seeking to make a change. After determining that the new attorney meets your criteria and the attorney is willing to take on the case, a discussion relating to the transition of your file to the new office would take place.

      It is generally unnecessary for you to contact your prior lawyer and explain that you going to be making the change, although you can if you wish. Instead, the new attorney would make all the necessary arrangements with your current attorney to have your file transferred to his or her office. A letter is generally sent specifically stating that the former attorney should make no attempt to contact you personally, but simply forward the documents.

      For many types of claims, your first attorney will receive a fee for services rendered once the case is resolved, either for the actual time put in by your attorney or the "value" of the attorney services to the overall result obtained. This will vary depending upon the state in which you retained your lawyer.


    Q: How do I handle a check from my lawyer bouncing?
    • A: If your attorney sent you a settlement check for a claim that you were making and it was from the attorney's "trust" account, this is very unsettling. An attorneys trust account must never be overdrawn. If the funds were from the attorney's general account, not the client trust account, it's not as serious a problem. I would suggest you call your attorney and see if this was just a simple misunderstanding or perhaps a bank error.


    Q: Is my attorney able to settle my case without my consent?
    • A: Possibly. Review the retainer agreement you signed with your attorney. It's possible that the retainer agreement allows your attorney to settle a case without your consent and to sign the settlement and release agreement on your behalf.

      If your attorney settled the case without your permission, and you have not yet executed the settlement and release agreement, and you're unhappy with the settlement, you should tell your attorney that you do not wish to proceed with the settlement. If a check has previously been forwarded to your attorney, it is a simple matter to return the funds.


    Q: My lawyer isn't working with me, not even returning phone calls. What can I do?
    • A: A lawyer not communicating is the most often-cited complaint being made to state bar associations. Often times, the failure to communicate isn't an indication of the level of time or work an attorney is actually doing on a case, but is symptomatic of poor organizational skills.

      Send your attorney a note letting him or her know that you've been trying to reach the office and speak with him or her, and would greatly appreciate a return call as well as a written update and specific responses to your questions. The letter creates a paper trail of communication with your attorney. The longer the attorney is unresponsive, especially after sending him or her a letter, the stronger a case for malpractice may be.


    Q: What is "breach of contract"?
    • A: A retainer agreement is a contract that defines the relationship between the lawyer and client. The agreement, like all contracts, lists the role, expectations, and obligations of each party. A breach of contract occurs when a party to the agreement fails to uphold the agreement.


    Q: What is "breach of fiduciary duty"?
    • A: An attorney is to act in the best interests of his client. When an attorney puts his own interests or those of a third party before that of the client, a lawyer may be breaching his "fiduciary duty" to the client.


    Q: What is legal malpractice?
    • A: Legal malpractice is the failure of a lawyer to render competent professional service to a client. If the client is damaged as a result of the failure, he or she may have a claim against the lawyer for legal malpractice. There are three major theories of liability:
      • Negligence
      • Breach of fiduciary duty
      • Breach of contract

      The most common theory of liability used in malpractice cases is negligence.


    Q: What is negligence?
    • A: An attorney owes a duty to the client to perform all work relevant to a case with the standard of care expected of the "average" attorney in the same or a similar situation. If the attorney fails to perform at the level of an average attorney, there may be negligence and liability for legal malpractice. If an attorney presents himself out to be an expert in an area of law, the standard of care is that of the "ordinary" expert in the field.


    Q: What must be proven to win a legal malpractice case?
    • A: To win a legal malpractice case, you must prove four points:
      • Your attorney owed you a duty to act properly
      • Your attorney breached that duty by acting negligently, not following through with the agreement or possibly making mistakes which an average attorney would not have made
      • Your attorney's behavior caused you damage. This includes proving that the results of your case would have been different (for example, you would have won the case) had the attorney acted properly
      • You suffered a financial loss as a result of the behavior



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