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Patient Who Declined to Appeal His Medical Malpractice Lawsuit Can Still Sue His Lawyers for Legal Malpractice

Last month a New York state appellate court ruled that a man who decided not to appeal a decision barring his medical malpractice claim did not lose his right to sue his attorneys for legal malpractice related to missing the filing deadline. His former lawyers argued that they thought they could win an appeal, which would excuse their alleged mistake. Because they were not allowed to appeal by the client, they thought they shouldn’t be held liable for any malpractice. The Court disagreed, according to a Bloomberg article.

In a 4-1 decision, the Fourth Department held that “requiring parties to exhaust the appellate process prior to commencing a legal malpractice action would discourage settlements and potentially conflict with an injured party's duty to mitigate damages.” This was the first time a New York court dealt with this issue. The Court fell in line with the previous decisions of several other states.

The Plaintiff in this case sued a Veterans’ Administration hospital for medical malpractice related to his going blind while a patient there, allegedly due to the hospital’s failure to properly monitor his condition. The physician accused of the negligence also worked at a nearby university, and the government argued that the doctor was an independent contractor at the V.A. and the government was not liable for his malpractice. The Court agreed. But by the time the patients lawyers got around to suing the doctor and the university, the statute of limitations had run on his medical malpractice claim.

That Court declined to dismiss one substantially less significant claim the plaintiff had against the V.A. But the patient decided to dismiss the matter voluntarily and then sued his lawyers. Those lawyers argued that by voluntarily dismissing his remaining claim and because they were not given the opportunity to appeal the dismissal of the other claims, the patient waived his right to sue them for legal malpractice.

This Court allowed the legal malpractice case to move forward, noting that if the patient waited for the appeal to be decided, he could lose his right to sue for legal malpractice under the same Statute of Limitations that cost him his medical malpractice claim. The Court also rejected the attorneys’ claims that they could win their appeal in the first place.

The dissenting judge, Justice Gerald J. Whalen, argued that Grace should be “precluded as a matter of law from bringing this legal malpractice action based upon his voluntary discontinuance of the underlying federal action and failure to pursue a nonfrivolous appeal.” Justice Whalen pointed out that while the majority claimed forcing clients to pursue appeals would create more appeals, not forcing them would cause more legal malpractice cases, so essentially everything evens out.


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer