Malpractice case reinstated where attorneys appeared to participate in appeal
Marcia Downs sued Northern Michigan Hospital after the baby she was carrying died during an emergency C-section. She hired Albert Dib and Associates to pursue the malpractice claim. Unfortunately, Downs' attorneys presented two midwives as experts against NMH in a claim that was against a labor and delivery nurse. The trial judge ruled that however similar their credentials, experience and obligations during delivery, the midwives did not have identical credentials and therefore could not testify against the delivery nurse who alleged committed malpractice. On this basis, the trial judge dismissed the malpractice case entirely. Her attorneys appealed, but the dismissal was upheld by the Supreme Court of Michigan.
Downs then sued Dib and his firm for legal malpractice. They argued that even though they had signed the Claim of Appeal and their names were on the briefing, their contingent fee obligated them only to pursue the case through the trial court stage--and therefore Ms. Downs waited too long to sue them. The attorneys argued that the attorney-client relationship ended two years after the trial judge's decision and before the final appeal was lost.
The trial judge agreed with the attorneys and dismissed the legal malpractice case, but on appeal the Court of Appeals reversed. It pointed to the various indications that Dib's firm continued to be involved in the appeal and concluded that it would be a "material question of fact" for the jury to decide whether the attorneys still represented Ms. Downs within two years of suing Dib.