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Redding v. Estate of Robert Sugarman, Esq., CA 07-4591 (E.D. PA May 3, 2012) is a legal malpractice case which arises out of a medical malpractice case. The most important lesson which is gleaned from this case is the strict ... 

Redding v. Estate of Robert Sugarman, Esq., CA 07-4591 (E.D. PA May 3, 2012) is a legal malpractice case which arises out of a medical malpractice case. The most important lesson which is gleaned from this case is the strict nature with which courts analyze legal malpractice claims. In this particular case, a failure to meet the required elements prevented a plaintiff from advancing a legal malpractice claim.

In 2007, Redding filed a claim that alleged her attorney, the defendant, did not properly represent her during a medical malpractice claim. The plaintiff was acting pro se, and thus when she filed the lawsuit, did not have a certificate of merit. The law inPennsylvania required that a certificate of merit stating the other attorney did not competently perform must be filed within 60 days or that no expert was needed. In this case, the plaintiff did neither, and thus Sugarman moved to dismiss the case. The analysis is quite interesting in that it analyzes the various experts that are required for legal malpractice in medical malpractice cases.

To prevail on a legal malpractice claim underPennsylvanialaw, a plaintiff must prove the employment of the attorney or other basis of duty; the failure of the attorney to exercise ordinary care or skill and knowledge breaching the requisite duty; and that such negligence was the proximate cause of damage to the plaintiff. The first prong in the medical malpractice case is rather easy because employment may be shown by a fee agreement between a client and attorney.

To prove damages resulting from negligence is much more difficult. It requires a court to sit in hindsight and judge whether a plaintiff would have won on the original claim, otherwise there are no damages. In other words they must show "but for the attorney's negligence a different result would have occurred." The general standard of care to which attorneys are held is measured by the skill generally possessed by other practitioners. InPennsylvaniacases, the expert is used as a gatekeeper so to speak.

The expert attorney witness is used because they can properly judge whether behavior is such that a normal attorney would view it as a deferral from general standards of care. There are in fact very limited circumstances in which a court will find an attorney's behavior to be negligent as a matter of law. This is related to the fact that there are a number of rules of professional conduct which bind attorneys and are commonly understood to be a behavior guideline.

In this case, the plaintiff accused her former attorney of legal malpractice based on a failure to identify an expert witness during the medical malpractice case. During the original case, the trial court urgedReddingto hire an expert witness several times to no avail. During the case's pendency, the plaintiff's position was that it was per se medical malpractice. The case law inPennsylvaniais not at a state where a medical malpractice case, no matter the harm, may be proven without the aid of an expert witness.

It seems the court struggled with this case initially, because they do note that there were cases in which a lawyer was held negligent for not securing experts, but they were distinguishable. In those cases, the attorneys did not have a reason, but simply did not pursue expert testimony. In this case, the plaintiff's attorney unsuccessfully sought an expert witness. The real fatality in this case wasn't the lack of an expert opinion regarding legal malpractice but the lack of an expert for the medical malpractice case.

The court was keen on pointing out the even assuming no expert was needed to show legal malpractice, Pennsylvania case law states that "[i]t is incumbent upon the Plaintiff to produce expert testimony to establish the recognized standard of medical care attributable to physicians under like circumstances." This case thus presented two burdens born by the plaintiff, the legal malpractice case, and the medical malpractice case.

This case should illustrate the virtual impossibility of proceeding on a legal malpractice case for medical malpractice decisions. A plaintiff must meet the first two elements of legal malpractice. Then, within the damages clause of legal malpractice must prove the underlying case.

In actuality, this would be an extremely expensive type of case to litigate. There is something to be noted in the fact that this particular plaintiff was pro se, but that argument concerning lack of legal services is for a different venue. The main idea that should be conveyed is that if a legal malpractice claim is made for medical malpractice cases, be prepared with experts of medical and legal origins. Legal malpractice experts get you off the bench, which would have prevented the summary judgment grant in this case. Medical malpractice experts win the game, and allow a plaintiff to be compensated if an attorney improperly carries out their representation.

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