During the past 12 months, the New York Court of Appeals has handed down three decisions in which the underlying action was a medical malpractice claim, yet the issues to be decided on appeal had little to do with the malpractice itself. They instead dealt with: the standard for legal malpractice cases where a ruling in the underlying medical malpractice case was not appealed; long-arm jurisdiction based mainly on Internet advertising of services by out-of-state medical practitioner defendants; and whether a catheter left inside a patient and not discovered for over 20 years qualifies as a “fixation device” or a “foreign object,” a distinction relevant to the applicable statute of limitations. These three decisions have created clear and broadly applicable interpretations of both statutory rules and common law principles in tort cases.
Counsel who assess whether to accept a case for legal malpractice must consider the complexities of proving a “case within a case” as well as proving that legal malpractice was a proximate cause of damages. These complexities are compounded when new counsel is faced with an adverse ruling that might be appealed and, perhaps, reversed. Should new counsel be compelled in all instances to pursue such an appeal as a prerequisite for preserving a legal malpractice action?
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