Part B - Sample fact pattern and jury instructions for malpractice of attorney in handling personal injury case
FACTS
Lawyer Ana Lee represented client Lawrence Marton in his medical malpractice case against General Hospital and Dr. Park after Mr. Marton was injured when his stroke was not timely diagnosed by Dr. Park. Before being credentialed by General Hospital, Dr. Park lost credentials at another hospital for failing to timely complete medical records. Ms. Lee decided not to hire an expert in support of Mr. Marton's negligent credentialing claim against General Hospital for credentialing a doctor who had been fired from another hospital in the past, reasoning that the negligence would be clearly understood by the jury. Mr. Marton then settled his claim against the doctor. Mr. Marton's only claim against the hospital was for negligent credentialing. The hospital filed a motion for summary judgment on the negligent credentialing claim because there was no expert testimony as to the standard of care. The motion was granted. After the conclusion of his medical malpractice case, Mr. Marton brought suit against Ms. Lee, claiming he would have prevailed on his negligent credentialing claim if Ms. Lee had retained an expert. As there was no issue of untimely completed medical records Mr. Marton's case, the hospital disputed that any causal link between the malpractice and the negligent credentialing claim existed.
INSTRUCTIONS
The instructions set forth below represent one way in which the instructions in a legal malpractice case for negligence could be structured. This case provides an example for compiling instructions in a case where causation and damages in the underlying case are at issue. The New Mexico Supreme Court has not expressly adopted the "trial-within-a-trial" approach. George v. Caton, 1979-NMCA-028, ¶¶ 46-47, 93 N.M. 370, 600 P.2d. 822. In a legal malpractice case where the malpractice asserted is negligence in handling an underlying claim or case, the jury must determine whether the plaintiff would have achieved a more favorable outcome in the underlying case. To enable the jury to assess the underlying claim, it may be appropriate either to present expert testimony as to the likely result of the underlying case, or for the jury to decide the probable outcome of the underlying case as if the jury were the jury on that case (i.e., calling and examining those persons who would have been witnesses and presenting the demonstrative and documentary evidence that would have been presented but for the attorney's negligence). See 5 R. Mallen & J. Smith, Legal Malpractice, § 33.8; see also Andrews v. Saylor, 2003-NMCA-132, ¶ 16, 134 N.M. 545, 80 P.3d 482. The method employed will depend on whether the trial court adopts the "trial-within-a-trial" approach, or an approach based on the use of expert testimony. If the trial court adopts the "trial-within-a-trial" approach, the jury should be provided with instructions for determining the probable outcome of the underlying case.
UJI 13-302A
In this civil case, Lawrence Marton is seeking compensation from Ana Lee for damages Mr. Marton claims were caused by Ms. Lee's decision not to hire an expert in support of Mr. Marton's negligent credentialing claim against General Hospital.
UJI 13-302B
To establish his claim of legal malpractice, Mr. Marton has the burden of proving that he would have prevailed on his negligent credentialing claim had Ms. Lee retained an expert.
UJI 13-302C
Ms. Lee denies that Mr. Marton would have had been awarded damages had his negligent credentialing claim gone to the jury. She also claims that her decision not to hire an expert was not negligent, but was a reasonable decision at the time based on the information she had.
UJI 13-2401
For Mr. Marton to recover from Ms. Lee on Mr. Marton's claim of legal malpractice, you must find that the following have been proved by a preponderance of the evidence:
1. Ms. Lee owed a duty to Lawrence;
2. Ms. Lee breached that duty; and
3. That breach was a cause of a loss to Mr. Marton.
UJI 13-2403
A lawyer has a duty to use the same degree of care, skill, and diligence ordinarily used by attorneys under similar circumstances. A lawyer who fails to do so is negligent.
UJI 13-2407
A lawyer has a duty to advise the client of negative consequences a reasonable lawyer would conclude may result from the course of action the lawyer recommends. This duty does not require a lawyer to discuss with his client every possibility, no matter how small or remote.
UJI 13-2412
A lawyer does not necessarily breach a duty to a client just because she makes a decision and it turns out that another decision would have been a better choice.
UJI 13-2414
The damages that may be recovered in a legal malpractice action are those which the plaintiff would have recovered in the absence of the lawyer's negligence. The damages that may be recovered also include expenses that the plaintiff incurred to avoid or reduce the loss caused by the lawyer's negligence. You will receive additional instructions regarding how you are to determine the damages the plaintiff would have recovered in the absence of the lawyer's negligence.