Legal Malpractice?

2 Answers. Asked on Jan 28th, 2017 on Legal Malpractice - New York
More details to this question:
My attorney filed my lawsuit against the surgeon. He filed the wrong surgery, date and place of the operation. The Dr has Never been disposed. Is this Legal Malpractice? Possibly will cost me my whole case. Thank you.
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Answered on Jan 29th, 2017 at 2:38 PM

Whether your attorney's mistakes are actionable legal malpractice depends on whether the complaint can be amended (if the mistakes were corrected in your bill of particulars, amending the complaint shouldn't be a problem. But it still begs the question why, three and a half years into the litigation, it wasn't amended.) and the strength of your underlying medical malpractice case.

Your attorneys may not be able to force your doctor to attend a deposition, but they can ask the court to strike his answer- which will prevent him from offering defenses, if he doesn't appear for his deposition. They should've already made this motion, if it's a good case. 

If "but for" the mistakes of your attorney you would have won your medical malpractice case, you have an action against your attorney for the full value of your medical malpractice case. You should have another medical malpractice attorney immediately evaluate your med mal case. Your current attorney must allow you to have another attorney review the file. If it's a bad med mal case, you have no legal malpractice case.  If it's a good case, an experienced med mal attorney will be able to give you an accurate estimate of the value of the case- and tell you if your attorney's mistakes will ultimately lead to dismissal. If the mistakes can be fixed and it's a good case- by all means switch attorneys- you have the right to do that at any time.

If it's a bad case because of your attorney's actions and can't be fixed, you have two choices. Stay with your current attorney and see if you can get some kind of settlement- and then sue your attorney for legal malpractice, for the difference between the settlement value and the value without the mistakes of your first attorney. Your other option is to abandon the med mal case and sue your current attorney for legal malpractice immediately- but don't do that without a lawyer who's willing to take on the legal malpractice case, and a lawyer who can testify as an expert on the medical malpractice to testify that your current attorney committed legal malpractice, and testify to the value of your case without the mistakes. The statute of limitations for legal malpractice is three years, and it starts running when your current attorney stops representing you on your med mal case. Good luck!  

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Answered on Jan 29th, 2017 at 6:12 AM

It depends if the present case can be salvaged by amending the complaint.  Fire your lawyer and get a new one to look into it.

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Legal Malpractice
The vast majority of attorneys act ethically and diligently representing the interests of their clients. But what happens when you hire a lawyer who has a conflict of interest, makes errors in your representation, is negligent or breaches his or her fiduciary duty? In those instances, you may have grounds for a legal malpractice complaint or lawsuit. Law firms that represent the victims of legal malpractice can help you file a complaint with your state's lawyer registration and disciplinary commission, while also filing a civil lawsuit against your former attorney.
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