Legal Malpractice

Legal Malpractice and the Medical Malpractice Statute of Limitations

By (Andrew Lavoott Bluestone)

A familiar legal malpractice scenario arises when a law firm takes a medical malpractice case, or takes it "subject to investigation", then rejects the case just short of the med mal statute of limitations.  Plaintiff is left in a quandary.  Find a new med mal attorney?  Demand the first attorney do something to preserve the statute of limitations?  Give up?

When the case is not started, it is often found that the client diligently shopped the case around to other med mal firms, only to have it rejected as "too late" or "too close to the statute" or because they see fingerprints on the case from the first firm.  Plaintiff is left with no choices.

Here is a newly decided case from Justice Emily Jane Goodman of Supreme Court, New York County who has a fair share of legal malpractice cases in her docket. Gala v. Martz , Justice Emily Jane Goodman,NEW YORK COUNTY, Supreme Court ,Justice Goodman
 

"This is a legal malpractice action arising in connection with a medical malpractice claim where defendant Edward J. Martz (Martz) and co-defendant, being sued herein as Sable & Gold and Sable & Gold, P.C. (S&G), were legal counsel for plaintiff Susan Gala (Gala). In her complaint filed in this action, plaintiff alleges that defendants committed legal malpractice by failing to timely commence a medical malpractice claim on her behalf against Dr. Mark E. Pruzansky (Prusansky), an orthopedic surgeon, prior to the expiration of the statute of limitations, and that due to defendants' negligence, plaintiff has suffered actual damages."
 

"In this case, defendants argue that, because the surgery performed by Pruzansky occurred on July 14, 1998, the two and one-half year limitations period to bring a medical malpractice action relating to such surgery ended on January 14, 2001. Defendants further argue that, even if the limitations period was tolled by the continuous treatment doctrine, since the last treatment plaintiff received from Pruzansky in connection with the surgery was on June 2, 1999, when she was provided with a new orthotic for her right foot, this would "extend the statute of limitations for a potential claim against Dr. Pruzansky to January 2, 2002, more than a month prior to the date [February 7, 2002] on which the plaintiff retained the defendants." Defendant Brief, p. 17-18. Therefore, defendants argue that the statute of limitations to commence a malpractice action against Pruzansky had already expired when they were retained by plaintiff pursuant to the retainer agreement of February 7, 2002.

This argument is without merit for many reasons. First, based on Pruzansky's medical records, he continued to treat and provided post-surgery follow-up services to plaintiff, beginning on or about July 20, 1998 through and including October 5, 1999, for a total of not less than ten office visits by plaintiff. Robb Affirmation, Exh. J (various medical records). Secondly, according to Pruzansky's deposition testimony based on such medical records, a part of the October 5, 1999 office visit was a follow-up examination of plaintiff relating to the July 14, 1998 surgery. Id. Exh. G (Pruzansky Deposition, p. 103). Even more importantly, the office notes maintained by Martz, as well as his own deposition testimony, reflected that when the S&G retainer agreement was signed on February 7, 2002, he was aware of the statute of limitations issue, and that a summons and/or notice should be filed promptly so as to protect plaintiff's potential claim against Pruzansky. Young Affirmation, ¶7-9 and Exh. 7-10; Martz Deposition, p. 104-111, 115-116.

Based on the foregoing, any argument that the limitations period to commence a malpractice claim against Pruzansky had already expired when defendants were retained by plaintiff lacks merit and must be dismissed.
 

Full post as published by New York Attorney Malpractice Blog on September 25, 2008 (boomark / email).