We believe that a legal malpractice case based upon a medical malpractice underlying case may be amongst the most technically and procedurally challenging litigations that exist. Proving a medical malpractice claim (as a plaintiff) is very difficult. It requires a strong understanding of medicine, massive record discovery, use of specialist medical experts, depositions of physicians, and a contest with an extremely well trained defense bar.
Now, on top of that a legal malpractice claim requires a second reinventing of all the initial work along with new experts and a lawyer expert all harmonized to show that the medical malpractice case was hypothetically winnable except for the errors of counsel. It is no surprise that a pro-se litigant might face early dismissal as did plaintiff in Silverstein v Pillersdorf 2021 NY Slip Op 06461 Appellate Division, First Department. There, the case was dismissed on a CPLR 3211 motion in a very short decision:
“Plaintiff’s legal malpractice complaint was properly dismissed in accordance with CPLR 3211(a)(7) for failure to state a cause of action. Even accepting plaintiff’s allegations as true, the complaint contains no nonconclusory allegations suggesting that any negligence by defendants in their handling of the medical malpractice trial was the “but for” cause of plaintiff to sustain actual and ascertainable damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 ). Given plaintiff’s conclusory allegations regarding causation, leave to amend was properly denied as futile.”