If an attorney fails to recognize and inform the plaintiff of a potential product liability tort within a medical malpractice case that would have lengthened the statute of limitations and have potentially resulted in a stronger case or better legal outcome, is that attorney guilty of legal malpractice (negligence)?
1 Answer from Attorneys
Although obviously every case is determined by the individual facts of the case, generally an attorney is responsible for identifying all the causes of action that might be helpful for their client and bringing those actions which would be beneficial. The failure to do so may fall below the standard of care for attorneys.
However, following below the standard of care is only one aspect of legal malpractice. There must also be damages. In the situation of a products liability matter, you must be able to prove that had the attorney filed a products liability claim, that it would've been successful. Often times that is the biggest hurdle for legal malpractice case, proving the underlying claim.