Firm Sued For Legal Malpractice Following Failure To Name Expert

Victoria Negron

Written by
— Updated on April 10, 2018

Legal Malpractice Expert

This case involves an insurance group that was sued by a law firm for failing to pay legal fees.  The law firm represented both a cardiology group and a surgeon implicated in the malpractice case, despite the fact that the two had competing positions in this case. Before the trial, the surgeon settled. Following the settlement, the law firm failed to assert any cross claims against the surgeon and retained no experts to point to the surgeon’s negligence. As a result, the cardiology group’s attorneys were unable to present against the surgeon and were hit with a large verdict. The law firm then sued the cardiology group and their provider for payment of fees and the group’s insurer counter-sued for legal malpractice.

Question(s) For Expert Witness

  • 1. Please briefly describe your experience litigating medical malpractice cases for the defense.
  • 2. In what situations would it be inappropriate to name an expert or to endorse a plaintiff's expert?

Expert Witness Response E-140847

I’ve litigated over 50 medical malpractice cases over the past 9 years in practice, assisting in medical malpractice trials and regulatory agency matters. In this case, it is a judgment call as to whether or not to retain an expert to point to a co-defendant’s alleged negligence. In my experience, medical malpractice co-defendants often take the position that there was no negligence, thus eliminating the need to cross-claim or make any allegations of negligence on the part of another co-defendant. If that was the strategy, then despite the fact that there seem to be some issues with how the case was worked up, I can’t say that the strategic decisions of the attorneys likely changed the outcome of the case (which is the standard). Even if the surgeon was represented by another firm, it would be a perfectly acceptable strategy to not point fingers at a co-defendant. Therefore, unless there is more information that the surgeon was clearly at fault, there would be little reason to endorse the plaintiff’s expert or to name an expert to criticize the primary care physician.

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