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Legal Malpractice Causing Wrongful Death?

We have represented many families whose loved one was the victim of wrongful death.  The most common reasons for wrongful death are motor vehicle negligence, a motorcycle accident, drowning, or a fire in an apartment building.  We have also represented many victims of legal malpractice in Massachusetts.  Those cases often involve a conflict of interest, negligence in civil procedure, failing to perform up the standards in criminal law, or over billing.  Wrongful death as a result of legal malpractice is not something we hear about often.  However, there is a Massachusetts case in which legal malpractice was alleged as the cause of death.  Read on.

In Mietkiewicz v. Galliher et al, in Worcester Superior Court, at issue was whether an attorney, in his capacity as an attorney, could be responsible for legal malpractice which resulted in the death of a client.  A law firm that represented Sophie DiPillo, an 87-year-old woman who was clearly incapacitated and suffering from dementia, drafted and allowed her to sign a health care proxy.  The health care proxy gave Ms. DiPillo’s grandnephew authority to act as her medical decision maker.  The grandnephew encouraged his aunt to have back surgery, which hastened her death.

It was later determined that the law firm was also representing the grandnephew in a bankruptcy proceeding.  Thus, the attorneys knew that the grandnephew had no assets.  And, believe it or not, the grandnephew hired the law firm to amend his Ms. DiPillo’s will, changing it to make him the beneficiary.

A relative intervened and became Ms. DiPillo’s guardian.  He filed this action against Ms. DiPillo’s former attorney on behalf of Ms. DiPillo’s estate.  Of critical importance was the testimony of the surgeon.  Dr. Pennings apparently testified that although Ms. DiPillo was in considerable pain, he believed she understood what she was procedure she was submitting to, notwithstanding her dementia.  There was other evidence establishing the back surgery may not have been the what hastened Ms. DiPillo’s death.  There was also evidence that would establish Ms. DiPillo had previously named her grandnephew as her health care proxy, but not through the defendant law firm.

The Court held that the case was too close to call on the issue of proximate cause.  That is, but for the conflict of representing both Ms. DiPillo and her grandnephew, the jury should determine if the lawyers committed malpractice by preparing the health care proxy and will.  And, if the lawyers should have been in a position to foresee that the grandnephew would assent to the medical procedure that caused Ms. DiPillo’s death.  Judge Kenton-Walker decided this should be a factual question for the jury to answer and denied Summary Judgment to the attorney defendants.  According to the defendants’ lawyer, “[t]here must be limits to the scope or definition of reasonable foreseeability based on considerations of policy and pragmatic judgment,” which he quoted from the case Poskuks v. Lomobardo’s of Randolph, 423 Mass 637 (1996).

Fortunately for the parties, but unfortunately for us, the matter was resolved and there are no more Court decisions that are public.

Wrongful Death and Legal Malpractice Attorneys Burns & Jain         

Attorney Neil Burns has represented victims of wrongful death and legal malpractice since 1985.  He knows of no other case like this but, along with his partner, Roshan Jain, offers a free initial consultation.  Call 617-227-7423.