With thousands of medical malpractice claims filed every year, complaints by litigants that their lawyer made a mistake are inevitable. When such a mistake deprives a plaintiff of fully litigating their medical malpractice claim, the plaintiff may turn their sights against their own attorney and file a legal malpractice claim. Legal malpractice suits pose an interesting situation in that the plaintiff must prove that but for their own attorney’s incompetence they would have prevailed on the underlying medical malpractice claim. As a result, when a legal malpractice claim involves an underlying medical malpractice case, medical experts are necessary even though the underlying medical malpractice case is no longer in litigation.
Legal malpractice claims generally require proof of the following:
- Attorney-client relationship. Typically, there is a written agreement between the parties, but it may be implicit. In either event, the relationship gives rise to a duty of care to the client.
- Negligent or wrongful act. The attorney must have breached his/her duty of care by failing to exercise the care, skill, and diligence that would be used by other lawyers in handling a similar matter under similar circumstances.
- Damage to the client. The negligent act must have injured the client, which essentially means that it made a difference in the outcome of the client’s case. In other words, the client must establish that he/she would have won the case had the attorney not been negligent. In addition, the client must prove how much money he/she would have won, and that the judgment was collectible.
Legal malpractice cases require legal expert witnesses to testify regarding whether the attorney met the standard of care in handling the underlying case. However, when legal malpractice arises out of a medical malpractice case, medical expert witnesses are needed both to establish whether the plaintiff would have prevailed and if so, the amount of damages. This means that legal malpractice in the context of medical malpractice may require experts from nearly any medical field. For example, a plaintiff sues her doctor for failing to diagnose breast cancer. The attorney misses the statute of limitations barring the plaintiff from suing the doctor. The negligent act by the attorney is obvious but in order to recover, the plaintiff must prove she would have prevailed against the doctor as well as how much would have been awarded. For that, she will need to bring in a Breast Cancer Expert Witness, but she also may require a Radiation Oncologist, General Surgery expert, Surgical Oncologist, or Plastic and Reconstructive Surgeon.
If you are involved in litigating a legal malpractice claim and need the assistance of medical expert witnesses, Elite Medical Experts can help you secure nationally recognized university healthcare experts for all types of medical litigation and complex consulting matters. Contact us today for a consultation.