Posted Oct 13, 2009 07:37 pm CDT
Allegedly misdiagnosed with breast cancer, Victoria Kremen had a double mastectomy. Then she sued her doctors for malpractice–and lost, because the statute of limitations had run.
Then she sued her lawyers for malpractice—and lost again. Now, however, she’s finally scored something of a legal victory, reports the New York Law Journal in an article reprinted in New York Lawyer (reg. req.).
Calling an effort by Kremen’s former legal counsel to recoup $6,000 in costs spent pursuing her medical malpractice case “nonsensical and frivolous,” a Manhattan trial court judge has ruled in her favor on this one issue. Supreme Court Judge Emily Jane Goodman says Kremen doesn’t have to repay the costs advanced by Benedict P. Morelli & Associates in the unsuccessful litigation, because the firm’s fee agreement doesn’t provide for this, the legal publication reports.
“The following illustrates why members of the public may hold cynical views of the legal profession,” writes Goodman at the outset of her costs ruling in Kremen’s favor.
The law firm, which is now known as Morelli Ratner, plans to appeal, according to attorney David Ratner. However, the firm will donate the money to charity if it wins, he tells the New York Law Journal. He says state law holds a client responsible for costs unless there is a written agreement stating otherwise.
The judge ruled that the firm’s retainer agreement, which says expenses and costs will be “reimbursed as a lien against the total gross recovery of the action,” precludes a claim for costs because there was no recovery in Kremen’s case.