FKB’s ANDREW R. JONES AND AARON M. BARHAM OBTAIN DISMISSAL OF LEGAL MALPRACTICE LAWSUIT ARISING FROM UNDERLYING OFFICE OF PROFESSIONAL MISCONDUCT (OPMC) PROCEEDING

07/19/2021

FKB’s Andrew R. Jones and Aaron M. Barham recently obtained dismissal of a legal malpractice lawsuit on behalf a prominent and well respected medical malpractice defense attorney.  The underlying representation arose from FKB’s client’s representation of an orthopedic surgeon in a New York Department of Health Office of Professional Medical Conduct (OPMC) investigation in which the surgeon consented to an agreement that contemplated no interruption to the surgeon’s medical practice, and in lieu of proceeding to a disciplinary hearing that could have resulted in the suspension or revocation of the surgeon’s medical license. 

In dismissing the orthopedic surgeon’s claims against FKB’s client in their entirety, the Court (Justice Frank P. Nervo) agreed with FKB’s arguments, specifically holding that: (1) the documentary evidence established that the attorney’s strategic choices in defending the orthopedic surgeon were reasonable; (2) the surgeon could not establish that he could have achieved a better result in the OPMC action “but for” any alleged attorney negligence; (3) the surgeon’s allegation that a better settlement could have been negotiated amounted to gross speculation, insufficient to establish proximate causation and (4) the surgeon’s breach of fiduciary duty, breach of contract, unjust enrichment, fraud, and Judiciary Law 487 claims are duplicative of the legal malpractice claim because they were based upon the same facts and sought the same relief. 

If you have any questions about this decision, or the defense of attorneys in general, please contact Andrew R. Jones and Aaron M. Barham.  

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