By the end of November 2012, three and a half months after mom died, I was completely fed up with the lack of communication between me and my lawyer. Finding a lawyer willing to handle the case in the first place was like pulling teeth, and now that I was back in Los Angeles it was going to be even more difficult to find a new one. I sent this email to a fellow blogger I’ve known for years:
Hey [redacted],
I don’t really know how to phrase this, so please bear with me.
My mom died on August 12th of this year at the age of 63. It is a terrible tragedy, and easily the worst thing that’s happened in my life. I miss her dearly and to say that I have been devastated is an understatement. She was physically very healthy and should not have died.
I have a lawyer — a friend of a friend of a friend referral — who has taken the case on contingency; it was nearly impossible to find a lawyer who was willing to take the case because my little sister and I are 37 and 39, and apparently there is some crazy in law in Florida about children over the age of 25 not being able to financially “benefit” from the loss of a parent.
Please understand that I am not trying to profit from my mother’s death. But I am livid about how she died and I want to make the people responsible pay somehow.
The lawyer I have will frequently go for weeks at a time without responding to my calls or emails, and I am considerably anxious about this.
My question for you is: Is it ever reasonable for a lawyer to go for so long without communicating with a client? Should I simply be grateful that I was able to find someone willing to take the case on contingency and be patient? Or do you think that I should look for alternative representation? Do you have any recommendations?
If you say that you are unable to respond to questions like this, I will completely understand. You’re simply the only lawyer I know (and trust) in the state, so I thought it would be worth a shot.
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Other details:
My mother was institutionalized in December of 2011 after a nervous breakdown. She was then kept drugged out of her mind for months — even though I repeatedly begged doctors to stop administering pyschopharmaceuticals — and bounced from hospitals to rehab facilities to nursing homes, with administrators and doctors simply handing her off to the next place they could dump her because she did not have health insurance.
I have incredibly detailed documentation of hundreds of phone calls, letters, and email exchanges between myself and dozens of representatives of the health care system in Florida. The vast majority of these are posted at kathiegagne.com and dated and time-stamped. My lawyer insisted I make the website private because he thinks “the defense” will use the information in court. But if you are interested I can give you access so you can read.
On August 7th I was called by her nursing home and asked if it was okay to administer a drug called Risperdal to mom. I told them that I absolutely did not want her on that drug, which has a history of deadly side effects and to which she had had negative reactions already earlier this year. I was told that they would not give her the drug. Then she was rushed to the hospital on the 10th and a nurse there told me that according to the records she had, the nursing home was giving her Risperdal daily. I called the nursing home and begged them to stop, in tears, and they refused to listen to me, told me I would need to call on Monday to talk to an administrator, and hung up on me multiple times. At one point I even said, “It’s not going to do me any good to call on Monday if she’s dead by then!” I kept calling and they would hang up on me. She had a heart attack on Sunday the 12th and died. All of this is very well documented.
The story is much, much longer, of course. But those are the basic facts. I paid the District Five Medical Examiner to perform a private autopsy for me after the Volusia County ME refused to do so.
Thank you a million times over for any advice or suggestions you may have,
He replied to me about forty-five minutes later:
David,
First of all, my condolences for your loss. […]
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That being said, if they gave your mother a drug against orders from you, AND you had a medical power of attorney, there might be some liability there. If they gave her medications that were not consistent with the standard of care, and that caused her death—as it seems like happened—there might be some liability there as well. the problem is that the legal claim belongs to her and/or her estate. In other words, the plaintiff would have to be “Estate of Mrs. Gagne” rather than either you or your sister (unless acting as a rep for the estate). I’m not aware of any law that limits the right of the estate to recover for the wrongful death. Now, you and your sister may not have any individual claims in your own right (like a husband or wife would for loss of consortium, for example) but I can’t imagine that the claims of the estate would be limited.
I just spent a moment looking up the wrongful death statute. Here’s the part that’s relevant to you:
§ 768.21
Damages.—All potential beneficiaries of a recovery for wrongful death, including the decedent’s estate, shall be identified in the complaint, and their relationships to the decedent shall be alleged. Damages may be awarded as follows:
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(2) The surviving spouse may also recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.
(3) Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury. For the purposes of this subsection, if both spouses die within 30 days of one another as a result of the same wrongful act or series of acts arising out of the same incident, each spouse is considered to have been predeceased by the other.
(5) Medical or funeral expenses due to the decedent’s injury or death may be recovered by a survivor who has paid them.
(6) The decedent’s personal representative may recover for the decedent’s estate the following:
- (a) Loss of earnings of the deceased from the date of injury to the date of death, less lost support of survivors excluding contributions in kind, with interest. Loss of the prospective net accumulations of an estate, which might reasonably have been expected but for the wrongful death, reduced to present money value, may also be recovered:
- If the decedent’s survivors include a surviving spouse or lineal descendants; or
- If the decedent is not a minor child as defined in s. 768.18(2), there are no lost support and services recoverable under subsection (1), and there is a surviving parent.
- (b) Medical or funeral expenses due to the decedent’s injury or death that have become a charge against her or his estate or that were paid by or on behalf of decedent, excluding amounts recoverable under subsection (5).
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(7) All awards for the decedent’s estate are subject to the claims of creditors who have complied with the requirements of probate law concerning claims.
(8) The damages specified in subsection (3) shall not be recoverable by adult children and the damages specified in subsection (4) shall not be recoverable by parents of an adult child with respect to claims for medical negligence as defined by s. 766.106(1).
So if your mother has a surviving spouse, he may have a claim. You and your sister probably do not. The estate may have a claim for specified damages under (6) but those would be minimal given her likely potential earnings. Because the claims might be minimal, you will have difficulty finding a lawyer who will take this on—the only ones who will are doing it out of pity or because they don’t understand the law well enough to know its limitations. (I could be wrong—as I don’t know this area very well.)
That being said, once a lawyer takes on a case, he has a duty to communicate with the client to keep the client reasonably informed. If you’re dissatisfied, you may want to seek someone else. If you’re just looking for a second opinion, there may be someone in Tampa or Jacksonville who would be willing to give you a more experienced view. It may take me a day or two to come up with a name, though.
As far as the lack of communication goes, in your shoes I would start to write letters and send them certified, asking for an appointment when he has time to talk. If you don’t get a response to those, I’d find a new lawyer. (And maybe do a little background research into this lawyer. Some of the ones in the Volusia County area are not very good.). Now, “weeks at a time” sounds bad, but I can imagine—giving the benefit of the doubt—that the timetable of the case is that nothing important happens for weeks. If so, the lawyer should tell you that in advance. (“We’ve got a hearing scheduled for Feb. 2—I don’t expect anything to happen until then…”)
I wish I could be more helpful to you—it looks like Florida law is leaving you high and dry on this one because of the limitation on damages.
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