Hanover Lawyers Professional Advantage
Risk Brief – Claim of the Month January 2025
What was the insured retained to do?
An attorney was retained to file medical malpractice/wrongful death action on behalf the decedent’s surviving daughter. Decedent died after gastric bypass surgery. The decedent’s minor daughter was the sole heir of the decedent.
What did the insured allegedly do wrong?
The attorney failed to file the wrongful death action in a timely manner, aka the attorney blew the statute of limitations (SOL). The late filing was due to an error regarding his interpretation of a tolling statue for the minor child. There was a delay in the appointment of a guardian on the child’s behalf. The attorney made an incorrect presumption that the SOL would be tolled until after the appointment of the guardian. The court did not agree with the attorney’s argument and dismissed the matter based on the failure to timely file the lawsuit within the SOL.
What were the damages asserted?
The wrongful death claim had a likely verdict range of $5M to $10M. The attorney only carried a $1M professional liability policy.
Lessons Learned?
Understanding the law in which you practice is one of your top priorities. Specifically, personal injury plaintiff attorneys must fully appreciate the SOL for any action they are retained to handle. Caution should always be taken if you are going to presume that the SOL is tolled. The consequence to a miscalculation is dire and often irreversible.
When in doubt, do what you can to file the matter prior to the SOL running. Diary systems are essential for cross-checking and protecting your client’s interests.
If you have questions following your research on the SOL, seeking a consultation with another more knowledgeable attorney may be necessary.
This material is provided for informational purposes only and does not provide any coverage or guarantee loss prevention. The examples in this material are provided as hypothetical and for illustration purposes only. The Hanover Insurance Company and its affiliates and subsidiaries (“The Hanover”) specifically disclaim any warranty or representation that acceptance of any recommendations contained herein will make any premises, operations or actions safe or in compliance with any law or regulation. By providing this information to you, The Hanover does not assume (and specifically disclaims) any duty, undertaking or responsibility to you. The decision to accept or implement any recommendation(s) or advice contained in this material must be made by you.
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