A legal malpractice case which arises from a medical malpractice case gone wrong is (we believe) just about the most complicated case to litigate.  Plaintiff must first prove that there were departures from good legal representation, and then afterwards, must prove that there were departures from medical treatment which proximately caused damage.  Both legal and physician experts are needed, and one must prove the value of the hypothetical medical malpractice award.

Gajek v Schwartzapfel, Novick, Truowski & Marcus, P.C.   2014 NY Slip Op 32418(U)   September 8, 2014  Supreme Court, Suffolk County  Docket Number: 12-2375  Judge: Ralph T. Gazzillo is an example of this type of case.  there are several lessons to be derived from this decision and order.

"This action was commenced to recover damages sustained by the plaintiffs due to the alleged
legal malpractice of the defendants. It is undisputed that the plaintiffs retained the defendant
Shwartzapfel Partners, P.C., allegedly wrongfully sued herein as Shwartzapfel, Novick, Truowsky &
Marcus, P.C., (Schwartzapfel) to prosecute an underlying action against Southampton Hospital, among others. The plaintiff Jerzy Gajek (Gajek) was admitted to Southampton Hospital on April 26, 2003. While in the hospital, Gajek developed pressure ulcers, commonly known as "bed sores." In the underlying action, the plaintiffs allege, among other things, that the hospital failed to properly assess  Gajek ‘s risk of developing bed sores, and that the hospital failed to properly treat said condition. It is also undisputed that, after it was commenced in October 2005, the underlying action (or  medical malpractice action) was handled by an associate at Schwartzapfel, the defendant Jason J. Platt  (Platt), that Schwartzapfel entered into an agreement with the law firm of Duffy, Duffy & Burdo to handle the matter as trial counsel (Trial Counsel) in September 2007, and that Trial Counsel entered into a stipulation marking the underlying action off of the trial calendar on December 5, 2007 for the  purposes of completing outstanding discovery. In late March or April 2008, Platt left his employment with Schwartzapfel. Thereafter, Trial Counsel indicated that it was no longer interested in handling the medical malpractice action and Schwartzapfel entered into an agreement with the defendants Law Office of John W. DeBlasio and John W. DeBlasio (DeBlasio) to handle the matter. In early 2009, the defendants in the medical malpractice action moved to dismiss the action pursuant to CPLR 3404 on the grounds that the plaintiffs had failed to restore the case to the calendar within one year. "

The Successor Attorney Problem

"Here, Platt has established his prima facie entitlement to summary judgment on the ground that
his actions or inactions are not the proximate cause of the plaintiffs alleged injuries. It is well settled that, an attorney’s alleged legal malpractice is not a proximate cause of a plaintiff’s damages where "subsequent counsel had a sufficient opportunity to protect the plaintiffs’ rights by pursuing any remedies it deemed appropriate on their behalf’ (Katz v Herifeld & Rubin, P.C., 48 AD3d 640, 853 NYS2d 104 [2d Dept 2008]; see also Alden v Brindisi, Murad, Brindisi, Pearlman, Julian & Pertz ("The People’s Lawyer"), 91 AD3d 1311, 937 NYS2d 784 [4th Dept 2012]; Somma v Dansker & Aspromonte Assoc., 44 AD3d 376, 843 NYS2d 577 [1st Dept 2007]; Ramcharan v Panser, 20 AD3d 556, 799 NYS2d 564 [2d Dept 2005]; Perks v Lauto & Garabedian, 306 AD2d 261, 760 NYS2d 231 [2d Dept 2003]; Albin v Pearson, 289 AD2d 272, 734 NYS2d 564 [2d Dept 2001]). That is, an attorney cannot be held liable for legal malpractice where he or she was not representing the plaintiff at the time some period for performance of an action expired and "successor counsel had sufficient time" to complete the action (see Ramcharan v Panser, 20 AD3d at 557, 799 NYS2d at 566). It is undisputed that Schwartzapfel and DeBlasio had approximately eight months after Platt was no longer involved in the plaintiffs’ medical malpractice action to move to restore the action to the trial calendar. "