We believe the legal malpractice case based upon an unsuccessful medical malpractice case is among the most difficult cases of any to litigate.  The practitioner must understand medical malpractice as well as legal malpractice, an in Vitale v Meiselman  2013 NY Slip Op 30910(U)
April 25, 2013  Sup Ct, New York County  Docket Number: 108969/12  Judge: Eileen A. Rakower there is the additional layer of New Jersey v. New York law with which to contend,

"This is an action for legal malpractice arising from defendants  Meiselman & Gordon LLP, Alvin Gordon, and Michael Meiselman’s (collectively, “Defendants”) representation of plaintiffs Felicia Vitale and Louis Vitale (collectively, “Plaintiffs”) in a medical malpractice action that was dismissed by the United States District Court of New Jersey (‘the District Court”) with prejudice.. This action was commenced on August 3, 201 1. In its initial Complaint, Plaintiffs asserted a claim for legal malpractice based on Defendants’ failure to comply with the New Jersey Affidavit of Merit statute, N.J.S.A. 2A: 53A-26 to 29. Issue was joined on or about October 1 1 , 20 1 1. Plaintiffs then moved for leave to file a supplemental summons and amended complaint by motion dated March 28,2013
to add a claim based on Defendants’ failure to name the individual parties who had rendered care and treatment services, thereby limited Plaintiffs’ recovery. That motion was granted. Defendants answered the amended complaint on or about September 1 1,2012, denying that claim.
 

Plaintiffs move for an Order granting them partial summary judgment pursuant to CPLR $3212 as to the issue of negligence/liability against Defendants for legal malpractice in causing the underlying medical malpractice action to be dismissed with prejudice due to their failure to comply with New Jersey’s Affidavit of Merit statute, N.J.S.A. 2A53A-26 to 29. Plaintiffs state that they are “not seeking summary judgment on the ultimate issue of whether Defendants committed legal malpractice,” but rather on the “’sole issue of whether the defendant was negligent, an issue that has already been determined in the underlying action.’’

As plaintiffs’ expert Fruhling asserts in his affidavit, the New Jersey Affidavit of Merit Statute requires “a plaintiff, in an action for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, to supply an affidavit within 60 days following the date of the filing of the answer to the complaint by the defendant.” Fruhling asserts that the statute requires the expert to opine that there is a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment,
practice or work that is the subject of the litigation fell outside acceptable professional or occupational standards or treatment practices. In Plaintiffs’ underlying medical malpractice case, Defendants submit the Affidavit of Merit of Salvatore Tedesco, M.D., a physician certified in the field of general surgery, who did not have a board certification in psychiatry and had no experience in the use of ECT and did not treat psychiatric patients in his clinical practice. Fruhling states that “an
attorney’s retention of a general surgeon to execute an Affidavit of Merit in support of a psychiatric malpractice claim was a departure from good and accepted legal malpractice.” Fruhling concludes that Defendants “failed to exercise the degree of care, skill and diligence commonly possessed and exercised by a member of the legal profession in New Jersey, and such failure led to the dismissal of Plaintiffs underlying action on the merits, with dismissal.”

Here, as the parties present conflicting expert affidavits concerning whether defendants were negligent in failing to exercise that degree of care, skill and diligence commonly exercised by an ordinary member of the legal community, Plaintiffs’ summary judgment motion is denied. Defendants’ cross motion for summary judgment as to Plaintiffs’ legal malpractice claims is also denied in light of issues of fact that exist in this case. Defendants have not established prima facie entitlement to summary judgment as to these claims. While Defendants allege that Plaintiffs have failed to demonstrate any evidence of proximate cause to support their legal malpractice action, Plaintiffs point to the affidavit of Dr. Goldstein (that had been submitted by Defendants on behalf of
Plaintiffs in the underlying action), who opines, with a reasonable degree of medical psychiatric certainty, that the treatment rendered at the Carrier Clinic departed from accepted standards of psychiatric practice and proximately caused Ms. Vitale serious and permanent injuries. Furthermore, Defendants have not established entitlement to summary judgment on Plaintiffs’ claim that they were negligent in limiting Plaintiffs’ recovery to $250,000 and by only naming Carrier Clinic as a party defendant. Defendants contend that they would have later named individual
defendants pursuant to the relation back doctrine. Plaintiffs state that Defendants have failed to demonstrate that the doctrine applied, and an amendment would have been permitted. As such, issues of fact exist with regard to this claim."