What is the time line in me filing a legal malpractice suit?

Asked 10 months ago - Cleveland, OH

In my moms case the complaint was filed on 02/15/2011 without the affidavit of merits, on 05/16/2011 after plaintiff failed to file the affidavit of merits. Defendants filed motion to dismiss because plaintiff has failed to state a claim upon which relief can be granted. The court granted it as dismissed without prejudice/nolle. The last filing date [Disposition date]being 06/23/2011. So my mom does not know anything about law so she just let it go cuz according to what my mom said was that these 2 attorneys told her that there was nothing more that could be done, it would cause more to proceed with the case then what it would be worth. so my mom believe them. I just got back in feb of this year and i started looking into the case and it is evident on the record why it was dismissed.

Attorney answers (5)

  1. William Bennett Eadie

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    Contributor Level 12

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    Answered . Under Ohio law, you must have an "Affidavit of Merit"--a sworn statement from a physician (and sometimes from a nurse) stating that upon reviewing the available records, the defendant(s) violated the standard of care--for medical claims. This is Ohio Civil Rule 10(D). From your description, it sounds like the attorneys were not able to secure favorable expert review of the case, or believed the damages were insufficient to proceed. Unfortunately, at least as of this writing, once a case is dismissed without prejudice, you only have one year in which to refile it. You should consult with an Ohio medical malpractice attorney to confirm as soon as possible.

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  2. Christian K. Lassen II

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    Contributor Level 20

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    Answered . One year from dismissal, but call a local malpractice lawyer

  3. David Ian Schoen

    Pro

    Contributor Level 20

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    Answered . Your facts are a little clearer now. It seems that your moms case was dismissed as of 6/23/11 because of certain failures by her attorneys. I am sure that the time to refile has long passed. However, depending on the underlying strength of the malpractice claim and the applicable statute of limitations for a legal malpractice claim, there may still be something she can do. You need to immediately consult with an experienced OH medical malpractice attorney who also does legal malpractice claims to get answers to these questions.

  4. Elizabeth Taylor Herd

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    Contributor Level 19

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    Answered . You may want to have your mother contact a legal malpractice specialist. Whether you potentially have a claim against the lawyer will depend on the merits of the original medical claim. If this lawyer had problems getting experts to support the claim it may be impossible to continue in any potential claim.

  5. Daryl L. Derryberry

    Pro

    Contributor Level 13

    4

    Lawyers agree

    Answered . Consult with a local medical malpractice attorney in your area. Good luck

    By providing this legal analysis of the issue presented, no attorney/client relationship is being formed.... more

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