Legal Malpractice:

What is legal malpractice?

In general, it is the failure of the attorney to meet reasonable professional standards in his/her representation of the client.

How does one prove legal malpractice?

Typically, legal malpractice is established by the testimony of an expert witness, an attorney with familiarity with the same type of transactions and claims as your attorney handled on your behalf. The expert witness establishes the "standard of care" of an attorney in handling this type of matter and provides expert analysis on the ways in which your attorney failed to meet those standards. A good way to think about the "standard of care" is the rules of the road for professionals in the field. Just as we expect licensed automobile drivers to recognize and obey Yield and Stop signs, practitioners in a given field of law should be held to know and obey Yield and Stop signs in their professional work.

There are some violations of the standard of care that many courts consider so plain as to not require the injured person to put on expert testimony that the attorney violated the standard of care. Not all courts agree on which conduct is so far from accepted standards as to represent obvious negligence. But, certain types of conduct by attorneys have been routinely scrutinized as evidencing obvious negligence. Examples include the failure of an attorney to file an injured person's case before the statute of limitations --- a legislatively set time period requiring that claims be filed within some many years of the occurrence of the harm --- has run and terminated the ability of the injured person to present her case in court. Another example is an attorney who fails to obey court orders and rules of procedure directly causing the client's case to be diminished and/or dismissed from court.

If I prove my attorney's negligence, does that mean I win?

Not necessarily. You must also establish that the attorney's negligence actually caused you harm. Sometimes, an attorney can be very negligent, such as in failing to file a medical negligence claim against a doctor who injured you, before the statute of limitations came and extinguished your right to sue the doctor. But, if you sue your attorney, you can expect that she will claim that even if she had timely filed your case, it was not a case that you would probably have won. Because you would have lost your medical negligence claim anyway, your former attorney will argue, her failure to file it in court on time did not harm you at all.

What is meant by the "case within a case"?

The "case within a case" is the case in which your attorney committed negligence. For example, the medical negligence case against a doctor for the failure to diagnose your breast cancer, which the court dismissed, for example, because your lawyer failed to name expert witnesses on your behalf in the time period set by the Court's scheduling order. This case -- the case your attorney should have properly handled for you -- is within the legal negligence case, that is your claim that the attorney committed negligence. In this "case within a case" analysis, the Court will require the person injured by the lawyer's malpractice to also show that if the lawyer had done her job professionally you would likely have won your case against your doctor for medical negligence.

What is meant by the "collectibility" defense?

The lawyer defending himself against a claim for legal negligence will argue that he is only financially responsible to you for losing the case you had entrusted to him to the extent that you would have been able to collect money from the person he should have successfully sued on your behalf. For example, if your lawyer did not file your case in time to beat the running of the statute of limitations against a driver who ran into your vehicle and permanently injured you, your lawyer will argue that if he had done his job and won a judgment in court against the driver he still would not owe you any money for his negligence if the driver was a man without any assets or insurance. In other words, this is the extreme end point of the "case within a case" analysis. If the lawyer you are suing would have been unable, despite prodigious efforts, to collect a dime on your behalf from the defendant you sued, then the lawyer will argue that his negligence did not deprive you of any money. Many courts today accept this analysis, even if the lawyer himself has tremendous assets and malpractice insurance.

What is the statute of limitations for suing my attorney?

Each state has its own statute of limitations. Because the types of claims that can be brought against an attorney can fall into several different types, no overall answer can be provided to this question. Claims can be for negligence, for breach of contract, for breach of a fiduciary duty -- such as maintaining your funds in an escrow or trust account, for civil theft under specific state laws, and, as another example, for fraud and negligent misrepresentation. Oftentimes, especially in transactions crossing state lines, the law of one state will provide a different period of limitations then another. This leads to a type of analysis called "choice of law." It is kindred to counting angels on pin heads and provokes much learned discussion, but sometimes leads to a pointed outcome. If the wrong state law applies, your case will be thrown out of Court even though it was timely brought under the law of a different state. The best rule is for you, the victim of legal negligence, to immediately discuss with an attorney of your choice your specific factual circumstance and to be guided by your attorney's determination of the statute of limitations. In following this rule, be very clear that defense lawyers will always research the facts and the law to develop an argument that your claim is time barred because of the passage of the statute of limitations. Time is always of the essence in seeking out your attorney.

What should I bring to my first meeting with my attorney?

Each attorney will guide you specifically. In general, you should go through your notes and documents so that you will have a good ability to show and tell your attorney your information on the following topics: (1) was there a written engagement letter setting forth your attorneys duties to you; (2) what did you ask your attorney to help you achieve; (3) how do you think your attorney let you down; (4) what made you first think, and when did you first think, that your attorney let you down; (5) what evidence is there that your attorney's actions were improper: For example, is there an opinion from the trial judge or from the appellate court that is critical of your attorney's conduct, and; (6) how has your attorney's actions harmed you and how do you calculate your losses.

What types of legal negligence claims have you recently handled?

In the past several years, cases I have handled for victims of legal malpractice include the following factual circumstances, presented here in very boiled down form:

• Claim against a law firm for betraying its clients and sabotaging their effort to bring their technology company public.

• Claim against a law firm for negligently prosecuting a US patent application for a valuable technology and for negligently failing to amend and correct the patent in time for the rights granted by the patent to be sold to a large pharmaceutical company.

• Claims against an attorney for failure to file a negligent maintenance of premises case against a hotel before the expiration of the statute of limitations.

• Claims against an attorney for failure to answer a court pleading on time so that all defenses of an honest businessman were struck and he became exposed to a significant claim for financial damages and business losses.

Medical Malpractice

What is medical malpractice?

In general, it is the failure of the doctor or other health care professional to meet reasonable professional standards in his/her medical care and treatment of the patient. It is the medical-legal equivalent of a doctor failing to recognize and obey a stop sign and driving her car into the intersection, crashing into her patient.

How does one prove medical malpractice?

Typically, medical malpractice is established by the testimony of an expert witness, who practices in and/or is well familiar with the field of medicine of the doctor or other health care provider you believe harmed you or your loved one. This evidence is called the "standard of care." Because medical knowledge is so specialized, the best experts are those whose daily practice involves the same questions of diagnosis and care as your doctor faced when he or she treated you for your medical complaints. Through the use of a qualified expert witness -- and different states have different rules on qualifying an expert medical witness -- you show that your health care provider did not meet minimum professional standards in her care of you or your loved one. An example: suppose your doctor sends you to a radiologist for a mammogram. Your radiologist reports back to your doctor that she sees suspicious microcalcifications and suggests a biopsy. Your doctor does not immediately tell you of this potentially life threatening development. You go on to develop a cancer not only in your breast, but also in your lymphatic system, threatening to further spread into other parts of your body.

If my doctor was negligent, does that mean I win?

Not necessarily. Sometimes, the negligence of the doctor will not cause you any increased harm or damages. You have to establish not only that the doctor, through negligence, violated the standard of care, but also that your doctor's negligence played a substantial role in causing you harm. An example: some types of cancer are almost always fatal and cannot reasonably be diagnosed before they have already grown to such a size and type as to already be terminal. If your radiologist, for example, failed to diagnose one of these types of cancer on x-ray, and a delay in your diagnosis ensued, your radiologist would defend himself in any case you and/or your estate brought against him by stating that with this particular cancer, as it appeared on the x-ray that he misread, that it already was a death sentence. Any delay on his part did not cause your death from that cancer.

What is the statute of limitations for suing my doctor or health care provider?

Each state has its own statute of limitations. Each particular statute of limitations has its own intricacy. In some states, the statute of limitations will not begin to run so long as the doctor is continuing to treat the patient. In other states, the statute of limitations will expire even if the plaintiff is unaware that her doctor has injured her. In other states, the statute can be of one duration if you are still alive, but of a shorter duration for your heirs if the health care provider's negligence proved fatal. As you might imagine, there are variations within each of these settings, and there are variations that depend upon whether your health care provider was in private practice, state or local clinical practice, or federal government service. The best rule is for you, the victim of medical negligence, to immediately discuss with an attorney of your choice your specific factual circumstance and to be guided by your attorney's determination of the statute of limitations. In following this rule, be very clear that defense lawyers will always research the facts and the law to develop an argument that your claim is time barred because of the passage of the statute of limitations. Time is always of the essence in seeking out your attorney.

What should I bring to my first meeting with my attorney?

Each attorney will guide you specifically. In general, you should go through your notes and documents so that you will have a good ability to show and tell your attorney your information on the following topics: (1) who were the doctors, nurses and hospitals involved in providing health care to you (2) what problems or issues did you come to your doctors with for help; (3) how do you think your health care providers let you down; (4) what made you first think, and when did you first think, that your health care providers let you down; (5) what evidence is there that your health care provider's actions were improper: For examples: did a nurse suggest to you that you should talk with a lawyer, or, were you told that quality assurance would look into this matter, and; (6) how do you believe your health and well being have been impaired and compromised as a result of the medical care you believe was inadequate. If you have your medical and billing records in hand, it is always good to bring them to the first meeting. As a word of caution, I do not recommend that a person ask one doctor if s/he thinks another doctor did not do a good job. Concentrate on working with your doctors on your health issues and leave the lawyering to the lawyer of your choice.

What types of medical negligence claims have you recently handled?

In the past several years, cases I have handled for victims of medical malpractice include the following factual circumstances, presented here in very boiled down form:

• Claims against a family practitioner for failure to diagnose breast cancer.

• Claims against an internist for failure to diagnose lung cancer.

• Claim against a pathologist for failure to diagnose endocervical cancer.

• Claims against surgeons for negligence in the removal of a gall bladder

• Claim against a urologist for failure to diagnose prostate cancer.

• Claims against a cardiologist for failure to timely diagnose and treat a patient with unstable angina/coronary artery disease.

• Claims against a hospital for negligent fall prevention protocols and implementation of fall prevention orders resulting in deaths to patients from in-hospital falls because of the accumulation of blood in the brain (sub dural hematomas).