Legal Malpractice

Legal Malpractice Case Dismissed for Lack of Proximate Cause

By (Andrew Lavoott Bluestone)

The elements of legal malpractice are well settled, as the Appellate Divisions write.  One of the triumvirate is proximate cause.  We've written in the past about the difference between "the" proximate cause and "a" proximate cause, see: Barnett v. Schwartz, 47 AD3d 197 (2d Dept,20070

Here is a case  Silberman v Reisman, Abramson, P.C. ,2008 NY Slip Op 07958 ,Appellate Division, First Department  in which plaintiff probably lost her worker's compensation case on the basis that she had an intervening accident.  Her attorneys did not obtain her medical records, and lost the motion.  From a reading of this decision, it seems that the legal malpractice attorneys did not themselves obtain a copy of the medical records in question.
 

"While an issue of fact exists as to whether defendants were negligent in failing to obtain plaintiff's medical records relating to the intervening 1990 accident, plaintiff adduces no evidence that but for such negligence the Board would not have rejected her reopened claim for the 1983 accident (see Russo v Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, 301 AD2d 63, 67 [2002]). There is simply nothing in the record to indicate the content of the medical records in question, and whether, as plaintiff claims, they would have shown that the intervening accident had no effect on her claimed present inability to work. Failure to demonstrate an issue of fact as to proximate cause requires dismissal of a legal malpractice action regardless of whether the attorney was negligent (id.). We have considered plaintiff's other arguments, including that defendants' failure to obtain the medical records should be sanctioned as a form of spoliation, and find them unavailing

Full post as published by New York Attorney Malpractice Blog on October 23, 2008 (boomark / email).