Legal malpractice claim may arise many years later

Legal malpractice in Florida is a unique type of claim that can become viable many years, even decades, after a prior separate legal matter began. A lawyer who causes a court to dismiss a case due to inaction or lack of prosecution may find himself on the defending side of accusations of malpractice.

USA Today reported an interesting recentlegal malpractice case that evolved from a Florida medical malpractice case from decades ago. In 1991, there occurred a tragic death of a Mississippi State University football player following a game in Orlando, Florida. That death prompted a medical malpractice suit against the treating medical providers a couple of years later, by a family member of the ball player. The plaintiff family member retained an attorney to file lawsuit. However, the lawsuit was never resolved on the merits, nor was it settled.

Fast forward to the year 2008, 15 years after the filing of the medical malpractice case. The Florida court dismissed the lawsuit against the medical provider due to the plaintiff's inaction. That plaintiff then sued the attorney who allegedly failed to properly act to pursue the court case sufficiently to avoid the dismissal. In essence, the claim alleged that the lawyer caused the dismissal of the plaintiff's case against the medical provider, resulting in the lost compensation.

What does Florida law require of a claim for a court to hear a legal malpractice case? There are three elements, as follows:

  • The client must have hired the attorney
  • The attorney must have had a duty to do some act that he or she failed to do
  • The attorney's negligence must have caused the client's loss or damages

Importantly, the kind of causation must be a proximate cause of the damages as opposed to a but-for cause that did not reach the level of proximate cause.

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