(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)
Tina Steinford, a distraught daughter of Paul Steinford, decided that her father should not have suffered and died but only could guess why. She did not have any material facts; did not have any medical records until April 2007; could not afford hiring a qualified doctor to investigate; and has no training in medicine or nursing. Her father was 84 years old, so a reasonable person does not normally suspect wrong doing or premature death.
She did not know and the medical records did not disclose the known side effects of the psychotropic drugs administered. Rather, those records refer to failures of the respiratory system, failure of the kidneys, sepsis and, unltimately, heart failure. Upset and too poor to pay for professionals, she continuously sought help but did not find it until after she contacted the Citizens Commission on Human Rights. A referral from that group to this counsel lead to the prompt involvement of a doctor that understands that psychotropic drugs poison older people. That immediately lead to the filing of this lawsuit.
The history of the delayed discovery rule preceding the passage of me three year outer limit in 1975 evidenced the possibility that the commencement of the running of the statute might be deferred indefinitely. [Brown v. Bleiberg (1982) 32 Cal. 3d 426, 432] And so in the Brown case a woman that had a foot surgery for corns sued her doctor twelve years later because unknown to her he removed bones.
Upholding Ms. Brown’s right to sue under the delayed discovery rule, the Supreme Court noted that Ms. Brown had testified about her training as a practical nurse and that it did not qualify her to diagnose her foot. [Ibid at 431] In the present case Ms. Steinford has no medical or nursing training. Examining controversial facts in the Brown case following a motion for summary judgment, including warnings by friends that she should sue her doctor, the Supreme Court concluded that reasonable minds could differ. [Ibid at 434] By contrast in this case Ms. Steinford did diligently seek help until she was able to find a lawyer that put her in touch with a doctor that advised her wrong had occurred. She filed the lawsuit immediately thereafter.
c. The Plaintiffs Could Not Have Filed a Lawsuit until a Lawyer Was Convinced of a Factual Basis.
Every lawyer that files a lawsuit must keep in mind that pursuing a claim for profit (either an hourly or contingent fee) they might be held responsible for a malicious lawsuit if they don’t have a tenable claim at the inception. Fundamentally, the attorney must be able to later make a facially sufficient evidentiary showing to avoid potential liability. That is because one of the elements of an action for malicious prosecution is the absence of probable cause for bringing the prior action. [Sheldon Appel v. Alpert & Oliker (1989) 47 Cal. 3d 863, 874]
No reasonable lawyer will commence a lawsuit against a doctor without a competent medical opinion.
[N]egligence on the part of a physician or surgeon will not be presumed; it must be affirmatively proved. On the contrary, in the absence of expert evidence, it will be presumed that a physician or surgeon exercised the ordinary skill and care required of him in treating his patient.
Engelking v. Carlson (1939) 13 Cal. 2d 216, 220.
Thus, the lawsuit could not have been commenced until actually filed in this case. (See Part 7 of 8.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.