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Dear Avvo Attorneys: We need your help, we have a medical malpractice and a legal malpractice case. Thank you!

Northridge, CA |

My wife was induced for 18 hours and then sent home. Our Dr. decided to schedule a c-section for the next week but on the day of the surgery they could not find a heartbeat on my baby. My wife had gestational diabetes and history of low amniotic fluid. We are sure there were many discrepancies and we decided to hire an attorney. He supposedly took our case, but called us two days before year after and said there was no case. Now we learned that the statute of limitations is one year and we can no longer file a complaint. We believe we were tricked by our attorney as he tried to delay the process. He kept saying all year long we did have a strong case. His assistant said we could file within 5 years. We want to know our rights as we were unable to consult for a second opinion. Thank you!

We are located in California.

Attorney Answers 3

  1. You have a long row to hoe and the outcome is far from certain. It may be difficult for you to find an attorney willing to help. If the statute has run on your med mal claim, you no longer have a cause of action against your health care providers.

    OTOH, if you were not advised of the applicable statute of limitations on your med mal claim, or of the requirement that you serve a 90-day letter prior to filing suit which might extend the statute of limitations depending on when the notice was given, your attorney was probably negligent. The kicker is that unless your med-mal claim was viable – you have no claim against your attorney.

    In order to prove legal malpractice in your situation you must prove a “case within a case,” i.e., that your health care providers’ conduct fell below the standard of care and you would have been able to recover damages, and that your attorney’s conduct was negligent.

    The bare facts you have stated are not sufficient to constitute a claim against your health care providers and therefore insufficient to constitute a cause of action against your attorney. However, undisclosed facts may reveal a viable cause of action against your health care providers.

    Having written all that, if you have ALL of your medical records and your entire legal file, you might be able to find an attorney who is willing to review them to determine if you have a case. You should expect to pay for the review because a medical expert’s review and opinion is required.

    If you choose to pursue the matter, you need to know that there is also a statute of limitations for claims against an attorney as set forth in Code of Civil Procedure 340.6 – generally 1 year from the time you discovered the facts constituting the wrongful act or omission.

    You may wish to contact Paul Molinaro, a physician attorney who may have an interest in your case. His Avvo profile is here:

    I am licensed in California only and my answers on Avvo assume California law. Answers provided by me are for general information only. They are not legal advice or counsel. Answers must not be relied upon. Legal advice and counsel must be based on the interplay between specific exact facts and the law. This forum does not allow for the discussion of that interplay. My answer to any specific question would likely be different if that interplay were explored during an attorney-client relationship. I provide legal advice and counsel during the course of an attorney-client relationship only. The exchange of information through this forum does not establish such a relationship. That relationship is established only by personal and direct consultation with me followed by the execution of a written attorney-client agreement signed by each of us. The communications on this website are not privileged or confidential and I assume no duty to anyone by my participation on Avvo or because I have answered or commented on a question. All legal proceedings involve deadlines and time limiting statutes. So that legal rights are not lost for failure to timely take appropriate action and because I do not provide legal advice or counsel in answer to any question, if you are an interested party you should promptly and personally consult with an attorney for advice and counsel. Also, see Avvo's terms and conditions of use, specifically item 9, incorporated by this reference

  2. You have already been given some great advice. I also am sorry that you have been through such an ordeal. Let me add that what makes legal malpractice cases in this area so hard is that you also have to prove the merits of the medical negligence case which makes the case even more expensive. If there was no autopsy it may be difficult to prove the cause of your loss. I wish you the best and hope that you can gain closure.

  3. Have a local legal malpractice lawyer investigate.

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