Two lessons for legal malpractice practitioners and, upon consideration, for all attorneys can be found in Wild v Catholic Health Says. 2013 NY Slip Op 04043 Decided on June 6, 2013 Court of Appeals. The first lesson is straightforward. One must preserve objections in order to appeal from the resulting order. Here, "On appeal, defendants contend that the trial court improperly instructed the jury on the loss-of-chance theory of liability because New York State has not yet adopted this theory, and the charge relaxed the plaintiffs’ burden of proof [FAN1]. Defendants base their argument on the following jury charge language:
"The negligence of any of the defendants may be considered a cause of the injuries to [decedent] if you find the defendant[s’] actions or omissions deprived [decedent] of a substantial possibility of avoiding the consequences of having a permanent feeding tube. The chance of avoiding a need for a permanent feeding tube to be substantial, does not have to be more likely than not and it does not have to be more than 50 percent, but it has to be more than slight." [*3]
In response, plaintiffs argue that defendants’ challenge based on the viability of a loss-of-chance theory of liability under New York law is unreserved, and that regardless, the jury charge was proper.
As a threshold matter we agree that the defendants’ challenge to the viability of the loss-of-chance theory as articulated on appeal is unreserved. The record indicates that defendants did not present the trial court with a direct challenge to the underlying theory of negligence propounded during the trial and eventually charged to the jury. Instead, counsel challenged the jury charge on the ground that the "facts of this case" do not support a loss-of-chance charge, not that such charge is wholly unavailable under New York law. Thus, the concern raised with the trial court was that plaintiffs had failed to present a factual basis for the charge, not that as a legal matter, regardless of the evidence, such a charge was prohibited under New York law. Moreover, defendants’ challenge was asserted as part of counsel’s request for adherence to the PI because, counsel argued, the proposed language deviated from the PI in a way that changed the burden of proof. Thus, the sum and substance of defendants’ argument before the trial judge was that plaintiff failed to present evidence in support of the charge which sought to instruct the jury on a negligence theory of loss-of-chance, and that the jury charge erroneously reduced the plaintiffs’ burden of proof and relaxed the standard for causation."
The Second lesson is on the question of whether a "loss-of-chance" claim might be available for legal malpractice cases. "The loss-of-chance theory, in certain jurisdictions, "’grant[s] recovery to patients for deprivation of the opportunity of more beneficial treatment and the resulting gain in life expectancy or comfort, although the evidence fails to establish a reasonable probability that without defendant’s negligence a cure was achievable’" (Hill v Novelties Pharmaceuticals Corp. _ F Supp 2d _ [ED NY 2013], quoting Williams v Recall, 33 Cal App4Th 120, 134 ). "
Might not the same theory, that a plaintiff was deprived of the opportunity of a more beneficial outcome to the litigation be available to legal malpractice cases?