There is an old (very old) tension between doctors and attorneys that we believe stems from antediluvian times. Lawyers frequently prosecute claims against doctors and (reportedly) doctors loathe attorneys. Whether or not true, legal malpractice claims arising from cases involving the Office of Professional Medical Conduct (DOH) and doctor discipline often end up in a legal malpractice setting afterwards.
Manouel v Dembin 2021 NY Slip Op 31536(U) May 5, 2021 Supreme Court, New York County Docket Number: 155675/2017 Judge: David Benjamin Cohen is but one example.
“Plaintiff is a licensed orthopedist. In or around September 2011, the New York State Office of Professional Medical Conduct (“OPMC”) began an investigation into Plaintiffs medical practices upon receiving complaints of misconduct from five of his former patients. The Dembin Defendants and Erbaio represented Plaintiff during parts of this investigation. ”
“This Court concludes that Defendants have demonstrated that they used reasonable skill commonly possessed by a member of the legal profession and that any alleged breach was not the proximate cause of Plaintiff’s damages. Therefore, Plaintiff’s legal malpractice claim is
dismissed as against all Defendants. Plaintiff’s breach of contract and breach of fiduciary duty claims arose from the same facts and are duplicative of the legal malpractice claim and, therefore, are also dismissed (Postiglione v. Castro, 119 AD3d 920, 922 [2d Dept 2014]; Miazga v. Assaf, 136 AD3d 1131, 1135 [3d Dep’t 2016]; Sutch v Sutch-Lenz, 129 AD3d 1141, 1144 ; Town ofN. Hempstead v Winston & Strawn, LLP, 28 AD3d 746, 749 [2d Dept 2006]). In light of the aforementioned conclusions, Plaintiff’s motion for summary judgment (Seq. 012) is denied.
Defendants establish with evidentiary proof in admissible form that Plaintiff fails “to meet the ‘case within a case’ requirement, demonstrating that ‘but for’ the attorneys’ conduct [he] would have prevailed in the underlying matter or would not have sustained any ascertainable damages” (Lieblich v Pruzan, 104 AD3d 462, 463 [1st Dept 2013]; see also Aur, 132 AD3d at 595), and Plaintiff fails to establish the existence of material issues of fact for a trial.”
“Plaintiff fails to show that, had there been a timely appeal before OMIG, such an appeal would have been successful (Coccia v Liotti, 70 AD3d 747, 754 [2d Dept 2010]) and, importantly, it is undisputed that OMIG twice denied pre-clearance requests of Plaintiff’s subsequent counsel Kulb, explaining that its denials were based on the Consent Order that Plaintiff signed with OPMG in which Plaintiff stated that he could not defend against at least one charge of misconduct from the Statement of Charges (Docs. 199, 202).3 Further, in its letter dated July 22, 2015, the Workers’ Compensation Board noted that its suspension relied on the Consent Order “wherein [Plaintiff] could not successfully defend against one of the acts of misconduct alleged” (Doc. 325). Similarly, the loss of hospital privileges was imposed in the
interests of patient welfare and objectives of the hospitals and it is pure speculation that communication with the hospitals prior to the execution of the Consent Order would have rendered a different result (see, e.g., Doc. 175). “Conclusory allegations of damages or injuries
predicated on speculation cannot suffice for a malpractice action” (Holschauer v Fisher, 5 AD3d 553, 554 [2d Dept 2004]). “The fact that … [P]laintiff subsequently was unhappy with the settlement obtained by … [D]efendant[s] does not rise to the level oflegal malpractice (id. at
554). Therefore, Plaintiff’s legal malpractice claims are dismissed against Defendants.”