In 2016 a medical malpractice law firm defending a legal malpractice claim asked a Bronx County Supreme Court judge to hold a pretrial hearing and decide whether their former client was insane (legalese for one who is mentally incompetent). The client's legal malpractice attorney's claimed that he had been mentally incompetent since the alleged medical malpractice in 1997 which caused him permanent brain damage. It was claimed that the defendant law firm (which was retained in 1999) mistakenly concluded that the statute of limitations (deadline) to sue the NYC hospital for malpractice in 1997 had expired. The statute of limitations would be tolled or extended (per CPLR Section 208) if the injured client was mentally incompetent from the date of the medical malpractice until the date a Notice of Claim was filed. So, in 1999 the client was allegedly still entitled to file a Notice of Claim via a motion for leave to file a late Notice of Claim. A Notice of Claim was not filed against the NYC hospital - instead - in 2000 the defendant law firm sued a private hospital and a physician employed by the NYC hospital.

Unfortunately, the medical malpractice law firm's strategy wasn't successful. The case against the private hospital was dismissed because they had not treated the client and the case against the physician was dismissed because as an employee of a City hospital, he could only be sued if a Notice of Claim was timely served. It wasn't. When the client hired a second law firm in 2005 to sue the City hospital, that action was dismissed as barred by the doctrine of res judicata based on the prior dismissal of the suit against the physician employed by the City hospital. The Court held that having lost a summary judgment motion, the defendant law firm was not entitled to a special pretrial hearing on the client's competency because that was the very same issue that would be tried before a jury at the legal malpractice trial. Of course, the client would still have to prove that "but for" the legal malpractice he would have prevailed in a suit against the City Hospital. Dufresne-Simmons v Wingate, Russotti & Shapiro, LLP, June 10, 2016 N.Y. Slip Op. 26206