Plaintiff Awarded Judgment in Legal Malpractice Action After Attorney Fails to Timely Commence Pressure Ulcer Suit

A March, 2013 judgment in Suffolk County Supreme Court awarded a plaintiff roughly $463,000.00 in a legal malpractice action. The case was brought when the plaintiff’s attorney failed to timely commence an action for negligence, medical malpractice, and violations of NY Public Health Law section 2801-d against a defendant nursing home.

ambulance1.jpgThe underlying cause of action involved the development and progression of a sacral pressure ulcer at the defendant facility. Plaintiff, as Administratrix of the Estate of the decedent, retained an attorney to investigate and pursue an action for pain and suffering stemming from the deterioration of the pressure ulcers at the Nassau County nursing home. Plaintiff’s attorney missed the statute of limitations, failing to commence the action in a timely manner. This failure led the plaintiff to pursue a cause of action for legal malpractice against her attorney.

A cause of action for legal malpractice consists of two elements. First, the plaintiff must allege that the attorney failed to exercise ordinary, reasonable skill and knowledge commonly possessed by a member of the legal profession. Second, the plaintiff must allege that the breach of this duty proximately caused actual and ascertainable damages. In other words, the plaintiff must show that he or she would have prevailed in the underlying action but for the attorney’s negligence.

In this action, the Court found that the plaintiff would have prevailed against the facility on her Public Health Law claim. As this blog has discussed previously, a resident entering a facility must receive proper treatment to promote healing of pressure sores, prevent infection, and prevent further sores from developing. Here, plaintiff’s decedent entered the facility with a Stage I-II pressure ulcer that deteriorated to a Stage IV. She ultimately died of sepsis, presumably from an infection stemming from the pressure ulcer. The Court found that the nursing home’s violation of Public Health Law, as well as state and federal regulations, would have led to plaintiff prevailing in the underlying action. Thus, because her attorney failed to timely file the action, plaintiff suffered damages recoverable under the theory of legal malpractice.

In determining damages, the Court must award an amount that does not materially deviate from what would be considered reasonable compensation under the circumstances given the plaintiff’s injuries. Through an examination of jury verdicts of cases featuring similar injuries to those suffered by plaintiff’s decedent, the Court arrived at the final judgment of approximately $463,000.00.

A key takeaway from this judgment is the importance of statutes of limitations. Neither lack of knowledge nor mistake is a defense for missing a statute. Accordingly, if you feel that a loved one has suffered an injury due to the negligence or mistreatment of a hospital or long term care facility, contact the experienced nursing home attorneys at Gallivan and Gallivan today to preserve your rights.

Contact Information