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 [2015]; 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.”

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Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.