Health

Doctor’s fault … then fault of the lawyer

July 8, 2015

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Cartoon lawyers, Daumier, Wikimedia

This is seventeen Murielle B. trying to get compensation for first mistakes by his doctor and his lawyer. In this article Sosconso , we explained that the doctor had “failed in its duty of information ” by making Murielle without asking her consent; she would certainly have refused, if it had known that the act, which showed no urgency, could result in paralysis of the right arm.
Counsel, Mr B., who then assigned the doctor Justice ignored a new law on compensation of victims, so that Murielle had to go, after appeal, the money she had won at trial.

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Sentenced to reimburse Axa almost 60 000 euros it has already spent, then it does not touch a pension of 850 euros per month, Murielle seeks a lawyer to attack Mr B. “In the region, they know each other, no one would have agreed to do that,” us-she says on the phone from an office of Restos du Coeur, where she works voluntarily. [1999007 ]

It is aimed at the Paris office Saint-Adam , specialist liability consulting professionals whose we discussed in particular in the chronicles of World titled how to redress his lawyer and When the lawyer forgets parts .

In February 2011, Marie-Claude Alexis, a member of the firm, brings proceedings for damages against Mr B., the insurance company lawyers of the Vosges bar – Allianz IARD – and solicitors of society, before the High Court of Bar-le-Duc (Meuse).

She requests that they be ordered to pay 175,311 euros for material and moral damages incurred by Murielle. She argues primarily that the absence of modification of the writings of the lawyer and the lawyer had the effect to uphold the claim of the CPAM that of the victim, and to reduce the compensation that it had obtained first instance.
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. Counsel discards on the attorney
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Mr B. replied that he should be acquitted on the grounds that he exercised in a limited liability company, when the damage occurred
He claims that the action is inadmissible: before attacking, Murielle should have appealed to the Supreme Court, the Court of Appeal of Nancy by having him committed a mistake by charging the debt CPAM on the loss of future professional earnings.
He rejects any possible foul on the attorney who drafted the conclusions
The avowed company for its part it received its instructions from Mr B.

On 30 August 2012 the Regional Court in Bar-le-Duc makes his judgment. It notes that Mr B. of responsibility can indeed be questioned: when the Nancy Court of Appeal delivered its interlocutory judgment, on 4 March 2008, he was “still the lawyer his own name Murielle “ the professional partnership to which he was referring was registered on 19 June 2008, with commencement of business on 1 July 2008.

The TGI considers that the action is admissible Murielle: “ No principle makes the placing into question the responsibility of the lawyer or the lawyer to the exhaustion of remedies against the decision to which he has supported “. He noted that the action is motivated by Murielle “the inadequacy of several applications on its behalf, which could lead to an appeal .”

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. Dereliction of duty to advise
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The TGI of Bar-le-Duc noted that the injury suffered by Murielle mainly due to the lack of performance of the interlocutory judgment of the Court of Appeal of Nancy. If the conclusions sent by the attorney refer well to the new nomenclature Dintilhac, the amounts requested have not been revised upwards, as he would have had to take account of the debt of the CPAM. These errors resulted in financial losses for the permanent functional deficit and to third party assistance.

Under the permanent functional deficit, the court awarded a sum of 80,000 euros, while it appears from the usual case-law that Murielle “could reasonably expect to obtain a sum of 100,000 euros, which a loss of opportunity for her to get a higher amount of EUR 20 000 to that granted by the court of appeal. “ [1,999,007]

Moreover, regarding the assistance by a third person, the court “ clearly suggests that the price of the euro cash was undervalued ” (15 euros instead of 26, 5) due to an error of scale: the attorney took as reference the tax capitalization rates applicable to taxpayers paying tax on capital, and not that relating to the compensation of victims … If Murielle had made its request on the basis of appropriate scale, “it should have collected 95,300 euros instead of 69,860; she lost a chance to receive the sum of 25,440 euros. ”

The court concluded that “ by failing to adjust the quantum of applications based on the amounts that could very likely be granted by the court, referring to a pension scheme which was not appropriate to Murielle B. situation, and failing to draw all the consequences that resulted from the new law on the assistance of the social organism, the lawyer and the lawyer breached their board duties and diligence and thus who is at fault for her cause of injury “.

There fixed at 40 000 euros pecuniary damage (45 440 euros less a deductible of € 1,500 applied by Allianz, under the contract it concluded with Mr B.), and 4,000 euros for moral damage.

He says that the sum of 44,000 euros will be borne equally by the lawyer and moist by solicitors society “ insofar Murielle B. was assisted and represented by both a lawyer and a lawyer, and that the presence of one does not preclude the other of its duty to advise and diligence “. Surprisingly, it refuses to grant the provisional execution.
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. Loss of luck or absence of risk?
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Considering the amount allocated highly inadequate, Mr. Alexis immediately appeal to the court of Nancy. She claims that the injury suffered by Murielle, due to the fault of the lawyer and the lawyer should not be compensated on the basis of “ loss of chance” would imply the the existence of a “hazard” there is in her no “doubt ” that the appeal court would have awarded the same compensation Murielle the High Court of Nancy, if the lawyers did not commit errors. She argues that “to repair the damage is of a certain gain, missed solely because of mistakes made by the boards .” She asked that it be repaired in full.

Counsel, the lawyer and Allianz are naturally not agree. They seek compensation on the basis of loss of chance, randomness is according to them inherent in all courts. In addition, they request the referral of the case to the Court of Appeal of Metz, which will delay the two-year process. Meanwhile, Murielle does not touch a penny. His lawyer is seeking provisions that are denied him, pending the judgment on the merits.

Only 2 April 2015, the appeal court delivers its judgment Metz. It confirms that professional liability by B. committed. It confirms “fault ” of the company confessed, she said that “it comes in various breaches his duty of advice and assistance regarding the quantum of two positions requests and especially by the lack of response to the findings of the Primary Health Insurance Fund of 14 October 2008 “. She added that this time, the conviction of the lawyer and the lawyer will be pronounced “jointly and severally” – each may be called upon to pay it off, dependent for him to turn against the other . She refuses Allianz apply a franchise, because it does not produce its insurance policy.

The Metz Court of Appeal does not grant the request of Mr. Alexis, to exclude completely the principle of loss of opportunity. But she admits that the difference between the amount received in the first instance (146,979 euros) and the perceived call (86 384 euros) may be compensated on the basis of a “loss of chance 90% “. It therefore grants Murielle the sum of 56. 980 euro.

She finds the money lost under the third party and the permanent functional impairment allowance can not, for their part, be compensated on the basis of a “loss of chance than 50%” [ 1999013]. She adds 10,000 euros in moral damages and 4,000 euros in Article 700. It condemns the opponents Murielle to pay some 90 000, not including interest, running from the originating process. [1,999,014].
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. Difficulties in implementation
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The Allianz company, to which the Holy Adam firm targets for the payment of the full sum, refuses to run, despite the judgment of the appeal court which imposed the sentence in “solidum” . She told him to wait for payment of half the sum by the Mutuelles du Mans, the insurer of the attorney.

The firm then proceeds to a seizure in his bank account, opened for Allianz Bank.

The insurer, claiming to have overpaid, Murielle assigns to the judge of execution, so that makes him … 488 euros, and it also pays 3,000 euros for abusive resistance over 3 000 in legal fees. The hearing will take place in July.
“This is outrageous!” protests Me Alexis, who, since 2010, defended his client without asking a fee.

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Other articles Sosconso undo his safety reasons travel

Highway at the foot of the castle: what compensation?

Air Compensation: Do not run two things at once

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or identity card (apparently) Expired: cruise canceled [1,999,013]
[1,999,012] or Car not delivered and defamation on a consumer forum

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