In its October 21, 2014 decision, the Court of Appeals State of New York (“Court of Appeals”), New York’s highest appellate court, ruled that prior to commencing a legal malpractice action, a party who is “likely to succeed” on appeal of the underlying medical malpractice action should be required to press an appeal. However, if the party is not likely to succeed in the appeal, he or she may bring a legal malpractice action without first pursuing an appeal of the underlying action. In short, the failure to appeal bars the legal malpractice action only where the client was likely to have succeeded on appeal in the underlying action. This is known as the “likely to succeed” standard.
The Court of Appeals stated that the likely to succeed standard is the most efficient and fair for all parties because it will obviate premature legal malpractice actions by allowing the appellate courts to correct any trial court error and allow attorneys to avoid unnecessary malpractice lawsuits by being given the opportunity to rectify their clients’ unfavorable result. The Court of Appeals rejected the “nonfrivolous/meritorious appeal standard,” which would require a plaintiff to pursue a nonfrivolous or meritorious appeal that a reasonable lawyer would pursue in order to be allowed to pursue a legal malpractice action.
Know Who To Sue: A Warning To Medical Malpractice Lawyers Handling Claims Against VA Physicians
This appellate case highlights a serious pitfall facing medical malpractice lawyers when they are retained to bring medical malpractice claims on behalf of clients involving alleged medical negligence by a physician or other health care provider at a VA facility, because the physician involved may or may not be an employee of the VA.
The plaintiff in the New York case had retained a law firm to represent him in bringing an administrative proceeding against the U.S. Department of Veterans Affairs (“VA”) for medical malpractice due to its alleged failure to diagnose his eye condition and to follow up with him after the VA canceled a medical appointment and did not reschedule his appointment for about one year, at which time a serious eye condition was diagnosed that led to blindness in one eye that allegedly could have been avoided if diagnosed and treated earlier.
The original law firm recommended another law firm to pursue the medical malpractice claim in court. The second law firm filed a federal tort claim action against the United States for the VA’s alleged medical negligence in cancelling the plaintiff’s medical appointment and failing to timely reschedule it. The second law firm subsequently learned that the allegedly responsible VA physician was not employed by the VA but was employed by one of its clients, which posed a conflict that led to the original law firm resuming representation of the plaintiff.
The VA was allowed to bring a third-party action against the physician and the physician’s civilian employer. The physician and his civilian employer moved for summary judgment, alleging that the claims against them were not filed in time. The VA also moved for summary judgment, alleging that the physician was not its employee. The federal court granted both motions for summary judgment, finding that the plaintiff’s medical malpractice claims against the physician and the physician’s civilian employer were time-barred, and that because the physician was not an employee of the VA, the VA was not liable for the plaintiff’s medical negligence claim against the physician. However, the plaintiff’s claim for the VA’s negligence for not timely rescheduling his appointment was not dismissed.
As a result of the federal court’s rulings, the original law firm advised the plaintiff that he was unlikely to succeed on the remaining claim against the VA, that a trial on that claim would be lengthy and costly, and therefore requested that the plaintiff discontinue the lawsuit, to which the plaintiff acquiesced.
The plaintiff thereafter retained a third law firm to sue the original and second law firms for legal malpractice in failing to timely sue the physician and the physician’s civilian employer. The original law firm responded that the plaintiff’s voluntary discontinuance of the federal lawsuit resulted in his forfeiture of a legal malpractice lawsuit, and that it was not responsible for the second law firm’s failure to timely sue the physician and the physician’s civilian employer. The second law firm responded to the legal malpractice lawsuit by alleging that the plaintiff was estopped from bringing the legal malpractice action because he failed to appeal the federal lawsuit and he failed to bring the legal malpractice action in a timely fashion.
Source John W. Grace, Respondent v. Michael R. Law, et al., Appellants. No. 165.
If you or a loved one may be the victim of medical negligence in New York or by the VA, you should promptly find a New York medical malpractice attorney (or find a VA medical malpractice attorney in your state) who may investigate your New York medical malpractice claim and/or your VA medical malpractice claim for you and represent you in a New York/VA medical malpractice case, if appropriate.
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