Gilles v. Wiley, Malehorn & Sirota

783 A.2d 756 (2001)


P underwent a colonoscopy to determine the cause of occult bleeding. Several polyps were found and removed, and she was discharged the same day. P continued to have bleeding, and a second colonoscopy was performed, which disclosed an ulcerated area as the source of the bleeding and which was treated. P claims that the physician who performed the second colonoscopy perforated her colon, requiring her to undergo an emergency surgical repair that day. During her week-long hospital stay following the surgery, P developed a right hydropneumothorax that retarded her recovery. P did fully recover. P consulted Raynes (D), and D represented P. D explained to her that before suit could be commenced, he would need a report from a medical expert opining that she had been the victim of malpractice. Dr. Andrew Lo reported to D that he believed there had not been malpractice. D advised P of Dr. Lo's opinion and stated that they will need to find an expert witness who can testify authoritatively that the care P received did not meet acceptable medical standards. D informed P that she would incur several hundred more dollars of expenses. P communicated her desire to proceed and agreed to pay the expenses involved. A Dr. Lawrence B. Stein, a board-certified gastroenterologist, opined that the second colonoscopy had been incorrectly performed in that a hot biopsy forceps had been used, that instrument having the highest risk of the complication of perforation and not recommended by the medical literature to control bleeding. D wrote to plaintiff again complaining that she had not yet paid the $1,204 she had been billed to cover expenses. D informed P that D cannot continue unless P paid the bill before October 31, 1997. By January 1998 the balance due had been reduced to something just under $125. D did not file a medical malpractice complaint. Six months later D wrote P and told her that D will not be in a position to file suit on P's behalf. D then informed P that she had two years from the incident of malpractice to file suit. The letter did not expressly state the date on which the limitations period would expire. P had just a few weeks. The statute ran out, and P had not found another attorney. P sued D for legal malpractice. D moved for summary judgment and P appealed.