DeLuna 'Test Case' Leads to a Legal Mapractice Case (Part II)
Earlier this week, I posted about a recent Illinois appellate decision on fraudulent concealment and equitable estoppel. This lawsuit, DeLuna v. Burciaga, 843 N.E.2d 478 (2005), is an interesting legal malpractice case and I plan on tracking its progress and continuing to report on the developments.
Background facts: In 1986, Mrs. DeLuna, the mother of four young children, was admitted to a hospital for back surgery. During the surgery her doctor allegedly cut through one of her arteries causing severe bleeding which led to her death the following day. After her death, Mrs. DeLuna's family hired a lawyer to pursue her estate's medical malpractice/wrongful death case. Without the knowledge or consent of the DeLuna family, the lawyer decided to deliberately file the lawsuit without attaching an affidavit from a reviewing healthcare professional, which, at the time, was a new Illinois Code of Civil Procedure Rule - the lawyer did this to "test" the constitutionality of the requirement.
The Illinois Supreme Court, in 1992, six years after the original complaint was filed, held that the requirement to file an affidavit was constitutional. See, DeLuna v. St. Elizabeth's Hospital, 147 Ill.2d 57 (1992). The lawyer then proceeded to refile the DeLuna wrongful death case, this time attaching the appropriate affidavit. The court then dismissed the complaint on res judicata grounds. See, DeLuna v. Treister, 185 Ill.2d 565 (1999). Throughout this time, the DeLuna family was unaware that their lawyer was using their lawsuit as a "test case". It wasn't until 2000, that another lawyer who had worked on the case but had not communicated with the family in the past due to a language barrier sent a letter to the DeLuna children telling them for the first time that their lawyer had used their mother's wrongful death suit as a "test case" and that their case was now barred on res judicata grounds.
The children then filed the legal malpractice case, and as previously reported the case recently survived a motion to dismiss. Not-with-standing, the fraudulent concealment and equitable estoppel arguments which have now been decided, there are a few other interesting legal malpractice questions that have yet to be addressed. Is it a violation of 1.2, 1.4, and 3.2 of the Illinois Rules of Professional Conduct if an attorney fails to seek the consent of their client before he files that client's lawsuit as a "test case" and fails to inform the client when he, in fact, does so? If the lawyer doesn't seek the client's consent does that misstep fulfill the "common knowledge" exception or are the DeLunas required to retain an expert to testify to their lawyer's breach of the standard of care? If this case continues to be litigated, it will be interesting to see how the Illinois courts address these questions. I will keep you posted.