Legal Malpractice

How Does an Attorney End the Relationship and Avoid Legal Malpractice?

By (Andrew Lavoott Bluestone)

A recurring problem in medical malpractice cases is one in which the attorneys take on a case, start the case, and then at the critical juncture when an expert has to be named, abandon the case.  From a business point of view, this behavior is incomprehensible.  On further reflection, it seems to us that the real explanation is that some medical malpractice attorneys really believe that enough cases will settle prior to needing an expert, that it is feasible to start cases they never intend to finish.

In Riley v. Segan Nemerov & Singer P.C., 303097/08;  Decided: December 14, 2009;  Justice George D. Salerno;BRONX COUNTY;  Supreme Court we see a slightly different variant.  In this med mal case, the claim was lack of informed consent to plastic surgery, and the case went well until it was ready for trial, and the expert dropped out.  From the decision it seems that the surgeon-expert lost his license.  From that point on, the law firm just did not get a new expert, or even oppose the eventual motion to dismiss after the case was marked off calendar.  Shockingly, the court determined that no expert was even needed at all.

"Applying the above principals, this legal malpractice action was timely commenced within three years after its accrual. This legal malpractice claim accrued on the date that plaintiffs' actionable injury occurred, namely, the date of the Order dismissing the case, June 20, 2005, or on the date of the decision, April 29, 2005, upon which the said Order was made. Using either date as the date of accrual, this action was timely commenced within three years of accrual, because it was commenced on April 16, 2008. See McCoy v. Feinman, supra.

Even assuming, arguendo, that the legal malpractice claim accrued prior to April 16, 2005, the continuous representation doctrine would toll the statute of limitations until the attorney-client relationship ended. Segan has not shown that their representation was unequivocally ended prior to April 16, 2005.

Leon Segan never sought leave of court to withdraw as counsel, as required by CLR 321 and 22 NYCRR 604.1(6). Rather, Segan remained the attorney of record until after Justice Silver rendered his decision on April 29, 2005. Segan continued to make appearances in the STP Part of this court on plaintiffs' behalf, including appearing for oral argument on Dr. Goldstein's motion to dismiss, on March 11, 2005, and April 8, 2005.

The Segan firm represented plaintiffs for seven years when Leon Segan sent his clients the letter dated the August 25, 2004. Lisa Riley states that, at that time: "it was [her] understanding that my medical malpractice action against Dr. Goldstein was active and that the defendants were doing everything possible to represent [her] best interests." Lisa Riley also indicates that she relied upon and trusted Segan to legally represent her, and she cooperated with them at every juncture. 7

It is also noted that, from the Bill of Particulars served by the Segan firm in the underlying Malpractice action against Dr. Goldstein, that Lisa Riley had suffered severe depression including a "suicide attempt", requiring psychiatric attention, caused by the deformities and scarring resulting from the alleged botched breast-reduction surgery. 8 Especially under such circumstances, Segan should have unambiguously orally communicated with the Plaintiffs, preferably in-person, (and certainly not merely by crafted letters), if they intended to end this long-term relationship of trust and confidence, which began when Lisa Riley was an infant.

"An attorney "does not have an unfettered right to unilaterally withdraw" as counsel, and "[good cause is required, to be determined, ultimately, by the Court" upon motion by said counsel.[citations omitted]." Frenchman v. Queller, Fisher, Danced, Saurianness, Washer & Pool, LP, 24 Misc. 3d 486 (N.Y. Sup. Ct. 2009)."

Full post as published by New York Attorney Malpractice Blog on December 24, 2009 (boomark / email).