McPhillips v. Bauman, 2015 NY Slip Op 08218: Appellate Division of Supreme Court of New York Affirms Dismissal of Legal Malpractice Claim


The Appellate Division of the Supreme Court of New York recently affirmed the decision of New York’s Supreme Court, dismissing a legal malpractice claim.  In McPhillips v. Bauman, a physician employed by the Department of Corrections sued an Assistant Attorney General who was assigned to represent him in a lawsuit brought by the estate of a deceased inmate.

After the inmate died in a shock incarceration program, the Commission of Correction Medical Review Board issued a report, and later a memorandum, criticizing the physician.  In a lawsuit brought by the estate of the deceased inmate, the Assistant Attorney General provided opposing counsel with a copy of this memorandum, who forwarded it to a newspaper.  The newspaper then published a story citing to the memorandum.  Consequently, the physician was added as a defendant in the underlying lawsuit.  The physician asked to be represented by independent counsel, asserting that the representation of correction officers by the attorney, which allegedly contributed to the inmate’s death, constituted a conflict of interest.  While the request was pending, that lawsuit was dismissed.

The physician then filed an action for legal malpractice against the attorney, alleging that the attorney ignored the conflict of interest, was negligent in regards to the memorandum, and failed to timely inform the physician of the existence of the memorandum.  The physician sought damages for mental anguish and injury to his professional reputation.  The Supreme Court of New York granted the attorney’s motion to dismiss and the physician appealed.

The Appeals Court affirmed the lower court’s decision, stating that the dismissal of the underlying suit against the physician precluded any damage to the physician.  Furthermore, because the physician did not allege any pecuniary damages in his malpractice claim, it was not viable.  The Court also mentioned that the attorney had no duty to advise the physician of a potential separate private action involving nonparties.

Decision: McPhillips v. Bauman






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