When commencing a medical malpractice lawsuit in New York State, plaintiffs, and especially, plaintiff’s attorneys, must be aware of the necessity of filing a proper and timely Notice of Claim where applicable, or they may forever lose the ability to bring suit.  This hard lesson was brought home again in a newly decided case in the First Department, Diaz v. New York City Health & Hospitals Corp. , NY Slip Op 08972 (1st Dept. 2008).  There, plaintiff’s attorneys intended to serve a Notice of Claim upon New York City’s Health and Hospitals Corporation, as plaintiff’s claims of apparent medical malpractice were based on treatment received at a City hospital.  Plaintiff’s attorneys mistakenly served the Notice of Claim on another entity, the Comptroller, instead, and by the time they realized the error, the 90-day time limit in which to file the Notice of Claim (against the proper entity) had expired.  As a result, plaintiff’s complaint was dismissed after the defendant made the appropriate motion.

Clearly, the ramifications here are quite serious.  Plaintiff does not get to bring his lawsuit, and his attorneys may now be liable for legal malpractice.

And speaking of legal malpractice, another new case in the First Department answers that often troublesome question: when can you, as a lawyer, violate the attorney-client privilege with impunity?  The answer, according to Helie v. McDermott, Will & Emery, et al. , NY Slip Op 09289 (1st Dept. 2008) is that you can do it when you are defending your lawyer/client against an accusation of wrongful conduct (i.e., legal malpractice) if revealing the confidences or secrets are necessary to your client’s defense.  See Code of Professional Responsibility DR 4-101(c).

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