On June 17, 2021 an Appellate Court refused to overturn a jury verdict in favor of an attorney sued for losing a medical malpractice trial in a New York County Court in 2017. The issue in this case was whether the client or her attorney was to blame for failing to have a medical expert testify against a surgeon. A medical malpractice plaintiff must present the testimony of a medical expert to explain to a jury that the defendant physician "departed from accepted standards of practice" and that this departure was a substantial contributing factor in causing the injuries complained of. If your attorney neglects to present expert testimony - you lose. To win a legal malpractice suit against your trial attorney you must prove that the attorney departed from accepted legal standards and that “but for” the attorney's departure, you would have won the medical malpractice trial, which resulted in a financial loss.
The defendant attorney was sued for legal malpractice by his client who claimed that she lost the trial but would have won if only her trial attorney had called a surgeon to testify against the defendant surgeon before resting his case. However, the attorney defeated the legal malpractice claim successfully arguing that: 1) he arranged for a surgeon to fly in from California to New York to testify at the trial; and, 2) the surgeon was present in the Courthouse during the trial but never testified because the client failed to pay the surgeon's fee. In less than 90 minutes of deliberation, the jury decided that the client had failed to prove that the attorney "departed from accepted standards of legal representation” during the medical malpractice trial. Warren v Silas, 2021 WL 2459394.