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C.A. Adopts Broad View of Tolling of Legal Malpractice Statute
Court Rules Lawyer’s Preparation of Medical Board Complaint Extended Time for Client to Sue
By KENNETH OFGANG, Staff Writer/Appellate Courts
The one-year period in which to sue an attorney who failed to file a medical malpractice complaint on time was tolled while the lawyer worked on a potential complaint to the Board of Medical Quality Assurance, the Court of Appeal for this district ruled yesterday.
Div. Eight reinstated Noralee Gold’s suit against her former lawyer, I. Donald Weissman, concluding that Weissman’s offer to file a complaint with BMQA was a continuation of his representation in the malpractice matter.
Weissman, a Tarzana lawyer, conceded in connection with his motion for summary judgment that he did not file a timely complaint for medical malpractice, blaming the problem on an attorney service. He notified Gold of the problem in October 1998, promised to seek compensation from the attorney service, and offered $10,000 in settlement.
In January 1999, Weissman spoke to Gold’s daughter, an Illinois attorney, and suggested the filing of a complaint against the doctor with the BMQA, providing a copy of the proposed complaint, with which Gold apparently decided not to proceed.
Trial Court Ruling
In January 2000, just shy of one year after Weissman’s letter to Gold’s daughter, Gold sued for malpractice. Los Angeles Superior Court Judge Paul Gutman ruled that as a matter of law, Weissman’s representation with regard to the “specific subject matter” of medical malpractice ended when he advised Gold that he had missed the statute date. Since the legal malpractice suit was filed more than a year after that, Gutman said, it was untimely and Weissman was entitled to summary judgment.
But Justice Laurence Rubin, writing for the Court of Appeal, said the action was timely under Code of Civil Procedure Sec. 340.6. That provision tolls the one-year statute if the attorney continues to represent the client with respect to the same specific subject matter.
Argument Rejected
Weissman argued that a malpractice suit and a BMQA complaint for the same conduct involve different subject matter because the forums and remedies are different. But Rubin concluded otherwise.
“Both appellant’s unfiled lawsuit and BMQA complaint...arose from the same event: her doctor’s malpractice,” the justice wrote. “Moreover, the lawsuit and BMQA complaint shared a common purpose: to permit appellant some measure of redress for her injuries and thus some relief—psychic from the BMQA complaint, financial from the lawsuit—and possible closure. The distinctions Weissman tries to draw between the lawsuit and the BMQA complaint...do not change the fact that the same medical malpractice gave birth to both proceedings, each designed, in its own way, to salve appellant’s one set of injuries.”
The case is Gold v. Weissman, B160578.
Copyright 2004, Metropolitan News Company