February 2007

GRAVEL AND SHEA SUCCESSFULLY SETTLES LEGAL MALPRACTICE ACTION

Gravel and Shea has recently achieved a successful settlement of a legal malpractice action. Lemieux v. Richard T. Franco, Esq. and Franco, Benjamin & Kazmarski, filed in Orleans County Court, charged that Richard Franco, a lawyer practicing in Newport and since retired, failed to file a medical malpractice claim on behalf of his client Linda Lemieux within the statute of limitations. Mr. Franco and his former firm raised numerous defenses. They claimed that Mr. Franco made a professional judgment not to file within the statutory periods afforded by 12 VSA § 521, and instead reasoned that the "continuous treatment doctrine" would be adopted by the Vermont Supreme Court. Accordingly, Mr. Franco and his firm claimed that the statute had not actually run, and that even if it had, he was protected by "judgmental immunity." Mr. Franco and his firm also claimed that even if he had allowed the statute to run, there was no causation because the medical malpractice action would not have been successful. The underlying medical malpractice claim against the Family Practice of Newport arose from a misdiagnosis of sinus cancer which proved fatal to Linda Lemieux. The defense argued that the family practitioners could not have reasonably been expected to discover that Mrs. Lemieux had cancer, and that even a timely diagnosis would not have altered the outcome. Gravel and Shea obtained a settlement of $500,000 from Mr. Franco and his firm for the damages Mrs. Lemieux and her husband experienced during the three-year period between the time the correct diagnosis of cancer was made and Mrs. Lemieux's death. This was in addition to $325,000 paid by Family Practice of Newport for the wrongful death damages. The case was handled by Robert B. Hemley and Norman C. Williams.