Attorney Defending Malpractice Suit Not Entitled To Pretrial Hearing to Determine Whether Client Insane

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

Ronald C. Burke, Esq

Trial Attorney with 30+ Years of Experience Attorney Ronald C. Burke, Esq. has more than 30 years of experience and has focused his career on representing clients in cases involving personal injury, medical malpractice and legal malpractice. He is a seasoned trial lawyer and has won many seven-figure settlements and verdicts for his clients over the years, including many case victories listed among the largest in the history of the New York State. He has been featured in the news and is a regular lecturer for the New York County Lawyers Association, as well as having lectured before the New York State Bar Association. Ron is also an attorney with Kelner & Kelner, a New York personal injury law firm. Awards and Accolades Mr. Burke's awards and accolades are many. Among them, he has been included in New York Super Lawyers® each year since 2010, and he has received the highest-possible AV® Rating from Martindale-Hubbell®. Verdict Search, a part of the New York Law Journal, frequently recognizes his notable successes after winning some of the highest settlements and verdicts in past years. He was also featured in their list of the "Top New York Verdicts " and "Top New York Settlements." He is a member of the New York State Bar Association and is licensed to practice law in the U.S. District Court for the Southern and Eastern Districts of New York, as well as before the United States Supreme Court. When Attorney Burke is not handling legal malpractice cases, he is highly involved in the local community. He was a member of the Village of Rockville Centre Volunteer Fire Department, has served on the local school board and as Chairman of the local Zoning Board. Learn more about Attorney Burke and how he can skillfully handle your malpractice case by contacting the Law Offices of Ronald C. Burke, Esq. right away to schedule your complimentary case evaluation. Our firm is here to help! Contact a New York Legal Malpractice Attorney Our firm provides each client's case with thorough preparation and aggressive representation, ensuring that you win the best possible results for your case whether it is settled or goes to trial. As a seasoned trial lawyer, Mr. Burke can provide the strong and relentless representation you need to establish negligence in a legal malpractice case and to recover any damages you may have suffered. Our firm can recover compensation for pre-trial and trial malpractice, violations of fee arrangements, loss of income, pain and suffering, and much more. Contact us today!


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