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NY: Attorney's Selection of One Among Several Reasonable Courses of Action Is Not Malpractice

Holschauer v. Fisher, 5 AD 3d 553 (2nd Dept. 2004)

NY: Underlying Professional Misconduct Hearing

Student Contributor: Mordechai Goldenberg

Facts: Plaintiff is a physician who was charged with professional misconduct by the New York State Department of Health Office of Professional Medical Conduct. After the disciplinary hearing began, the defendant attorney negotiated a settlement with the OPMC, whereby the plaintiff admitted to some of the charges against him and agreed to a one-year suspension of his license to practice medicine, with 10 months of that suspension stayed, a five-year probationary period thereafter, and a two-year period during which he would be monitored by a practice supervisor. The plaintiff commenced this action to recover damages for legal malpractice, claiming that he was unable to get approval for a practice supervisor and that the defendant attorney should have negotiated a better settlement for him by obtaining pre-approval of a practice supervisor. He claimed that if his license had been revoked, he could have reapplied for a license after three years and thus would be practicing medicine quicker than he now due to his inability to find a suitable practice supervisor.

Issue: Does the fact that the plaintiff was subsequently unhappy with the settlement obtained by the defendant rise to the level of legal malpractice?

Ruling: No. The court noted that while the plaintiff poses an alternative strategy which might have been pursued by the defendant, the "selection of one among several reasonable courses of action does not constitute malpractice." The plaintiff’s contention that he would be in a better position if his license had been revoked since he could have reapplied for a license after three years is speculative and conclusory because there was no guarantee that the OPMC would have granted him a new license after three years.

Lesson: In order to maintain a legal malpractice action in New York, the plaintiff must be able to demonstrate that he suffered an actual loss due to attorney’s misconduct, speculative and conclusory allegations will not suffice. 

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Posted in: Damages, New York, Proximate Cause