Healy v. Finz & Finz PC, 2011 NY Slip Op 1616, App. Div. 2nd Dept., 2011.
Facts: The plaintiffs retained the defendant law firm to represent them in the underlying medical malpractice action, in which they alleged that the doctors should have delivered plaintiffs’ surviving babies immediately after learning that one of the three fetuses had died, and that the delay caused injury to one surviving child.
The plaintiffs’ expert medical witnesses were unable to testify as to when the injury occurred, however, and the trial court held that the plaintiffs could not establish the proximate cause element of medical malpractice. The appellate court affirmed. Shortly thereafter, plaintiffs filed suit against their former attorneys.
Issues: Were plaintiffs’ former attorneys liable for the consequences of the experts’ inability to testify to key information?
The defendant attorneys presented affidavits from medical experts in the legal malpractice action alleging that the injury would have occurred immediately upon the death of one fetus in any event – a position directly adverse to that of their former client in the medical malpractice action. The Court allowed this, and in support of its decision to grant summary judgment to the defendants, provided:
Attorneys are free to select among reasonable courses of action in prosecuting clients’ cases without thereby exposing themselves to liability for malpractice…[T]he firm demonstrated that it could not have proven proximate cause in the underlying medical malpractice action, and  the plaintiffs failed to raise a triable issue of fact in opposition…
Lesson: In New York, the professional judgment rule can serve as a defense to a claim for legal malpractice alleging negligent selection of experts. Further, the Courts will allow the defendant attorneys to submit expert testimony in the legal malpractice action that is directly at odds with the position they advanced on behalf of their client in the underlying action.