Suing an attorney for his handling of a medical malpractice case is among the most complicated cases in law.  Plaintiff must prove the negligence of two professionals and must do so with the use of experts in two separate fields.  One common scenario is the attorney who bails out just before trial, or at summary judgment time, because there is no expert.

Snyder v Brown Chiari, LLP  2014 NY Slip Op 02363 [116 AD3d 1116]  April 3, 2014  Appellate Division, Third Department is one case where plaintiff found an expert who had actually reviewed the file.

"In late 2002, plaintiff underwent a surgical procedure and shortly thereafter developed complications that resulted in three further surgeries, none of which was successful. She retained defendants, which commenced a medical malpractice action in March 2004 against the physician who had performed the initial surgery as well as that physician’s partnership. In late February 2007, and with a trial date scheduled for early March 2007, defendants attempted to withdraw as counsel to plaintiff because, among other things, an expert had not been retained. Supreme Court (Falvey, J.) denied defendants’ motion to withdraw as counsel to plaintiff, granted a motion by the defendants in the medical malpractice action to preclude plaintiff from offering expert testimony at trial and, because a prima facie case could not be established without expert proof, dismissed the medical malpractice action. When plaintiff attempted to obtain her file from defendants, Supreme Court permitted a lien for defendants’ disbursements of $7,500.45.

Plaintiff commenced the instant action in early 2009 alleging, among other things, legal malpractice. Defendants answered and eventually made a motion to dismiss pursuant to CPLR 3211 asserting various grounds including collateral estoppel and failure to state a cause of action. Supreme Court (Sherman, J.) found no merit in the collateral estoppel argument; however, the court determined that plaintiff failed to establish the legal malpractice claim because of a lack of proof that she would have been successful in the underlying medical malpractice action. Finding the remaining causes of action duplicative of the legal malpractice claim, the court dismissed the [*2]complaint. Plaintiff appeals.

Plaintiff stated a cause of action for legal malpractice. Elements of such a cause of action include "establish[ing] both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff, and that the plaintiff would have succeeded on the merits of the underlying action ‘but for’ the attorney’s negligence" (AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007] [citations omitted] accord Alaimo v McGeorge, 69 AD3d 1032, 1034 [2010]). In the procedural context of a motion to dismiss for failure to state a cause of action, "the court must afford the pleadings a liberal construction, take the allegations of the complaint as true and provide plaintiff the benefit of every possible inference" (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). "Whether the plaintiff will ultimately be successful in establishing those allegations is not part of the calculus" (Landon v Kroll Lab. Specialists, Inc., 22 NY3d 1, 6 [2013] [internal quotation marks and citations omitted]) and "a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint" (Leon v Martinez, 84 NY2d 83, 88 [1994]).

Here, plaintiff submitted, among other things, an affidavit and attached memorandum from a physician licensed in New York. This physician had been consulted by defendants in 2003, and he produced his memorandum from such time which set forth in ample detail for purposes of opposing a motion to dismiss that plaintiff’s surgeon deviated from appropriate care. His affidavit reaffirmed that he believed there was malpractice in the treatment of plaintiff by her surgeon and, further, stated that he had been available to testify at the scheduled 2007 trial, but was never contacted by defendants. Such proof, together with the detailed allegations in the complaint, state a cause of action."