A couple from La Plata hired a lawyer to file a lawsuit for alleged medical malpractice following the death of their newborn daughter. They granted a power of attorney through a public deed in July 2009 and obtained the benefit of litigating without costs. However, the civil claim was never filed.
The professional decided not to proceed with the lawsuit. As he explained years later, he based his decision on the outcome of the criminal investigation into the same incident, which was archived in 2014 because the expert evaluations did not find sufficient evidence to attribute criminal responsibility to the medical staff. He considered that the chances of success in the civil route were low.
The problem, according to the Justice system, was not that evaluation itself. The lawyer could reach that conclusion, but he had the obligation to communicate it to his clients in a timely manner. If the parents had been informed, they could have consulted another lawyer and explored other alternatives before the legal deadlines expired.
As they did not receive any notification, the action expired. They were left without the possibility of consulting another professional to evaluate the claim. This silence created a situation of defenselessness that the First Chamber of Appeals in Civil and Commercial Matters of La Plata considered a breach of the duties inherent to the profession.
The lawyer's duty to inform
The judges recalled that the relationship between a lawyer and their client is not limited to submitting documents or initiating lawsuits. It includes the duty to act diligently and keep the client informed of decisions that may affect their judicial situation. The lack of communication, in this case, caused a concrete harm that needed to be repaired.
The first-instance ruling was upheld. The court set compensation at $4 million for each parent, totaling $8 million, exclusively for moral damages. It was not about condemning the professional for the outcome that the original lawsuit could have had, but for deciding not to initiate it and not notifying before it was too late.
The parents had also requested compensation for loss of opportunity, meaning for being deprived of the chance to pursue the claim against the doctor. This request was denied. The Chamber considered that there was not enough evidence to assert that such a potential lawsuit would have had concrete chances of success.
The medical evaluations also did not allow for a definitive determination of how the patient's prior care had been, due to a lack of relevant documentation. The claim for psychological damage was also dismissed. Although an evaluation detected emotional consequences in one of the claimants, the judges understood that they were primarily linked to the death of the daughter and could not be directly attributed to the lawyer's actions.
