Experts and Legal Malpractice Claims
Experts are often needed in litigation, and always in medical malpractice litigation. Med Mal cases are lost and it is sometimes thought that they are lost because of experts. Was the expert good enough? Did the expert "give" the departures?
In Healy v Finz & Finz, P.C. 2011 NY Slip Op 01616 Appellate Division, Second Department we see an awful choice foisted on parents. Mother has triplets, one is dying in utero. The two others are well but very small, and at risk for low birth weight. What to do?
One child was "born with periventricular leukomalacia, a form of cerebral palsy that renders him dependent on others for his basic needs. There is no dispute that the infant plaintiff's condition resulted from him sharing a placenta with his deceased brother.
"The plaintiffs retained the defendant law firm, Finz & Finz, P.C. (hereinafter the firm), to represent them in the underlying medical malpractice action, which they commenced in 1997. The firm's theory of the case was that the doctors should have delivered the surviving babies immediately after learning of Sean's death, and that the delay caused Kevin's injury. Most of the defendants in the medical malpractice action obtained summary judgment dismissing the complaint insofar as asserted against them, and the one defendant who went to trial obtained a directed verdict dismissing the case. The plaintiffs' expert medical witnesses were unable to testify as to when Kevin's injury occurred, acknowledging that it could have been immediately after Sean's death. Thus, the Supreme Court held that the plaintiffs could not establish the proximate cause element of medical malpractice. This Court affirmed (see Healy v Spector, 287 AD2d 541). "
"The plaintiffs thereafter commenced the instant action alleging legal malpractice [*2]against the firm. The firm moved for summary judgment dismissing the complaint, submitting in support the affirmations of three physicians, in which they stated that Kevin's injury was caused by Sean's death. The plaintiffs submitted the affirmation of their own expert physician in response, who stated that, although Sean's death caused Kevin's injuries, the damage would have occurred over time. They also submitted the affirmation of an attorney, who stated that the firm failed to exercise the care and skill commonly exercised by a member of the legal profession, because its attorneys failed to find an appropriate medical expert. The Supreme Court denied the firm's motion for summary judgment dismissing the complaint. We reverse"
""Attorneys are free to select among reasonable courses of action in prosecuting clients' cases without thereby exposing themselves to liability for malpractice" (Iocovello v Weingrad & Weingrad, 4 AD3d 208, 208). Here, the firm established, prima facie, that its choice of experts in this case was a reasonable course of action, and the plaintiffs failed to raise a triable issue of fact in opposition. The conclusory assertion of the plaintiffs' expert attorney—that the firm simply chose the wrong experts—is insufficient to sustain a cause of action alleging legal malpractice (see Dimond v Kazmierczuk & McGrath, 15 AD3d 526, 527). Moreover, the affirmation of the plaintiffs' expert physician was itself conclusory and was, thus, insufficient to raise a triable issue of fact in opposition to the motion for summary judgment (see Brady v Bisogno & Meyerson, 32 AD3d 410). As the firm demonstrated that it could not have proven proximate cause in the underlying medical malpractice action, and as the plaintiffs failed to raise a triable issue of fact in opposition, the Supreme Court should have granted the firm's motion for summary judgment dismissing the complaint (see generally Zuckerman v City of New York, 49 NY2d 557, 562). "