Malpractice Expert WitnessesPlaintiff, licensed dental hygienist, appealed the district court’s grant of summary judgment in favor of a law firm on Plaintiff’s claims that included legal malpractice. Plaintiff claimed that the law firm’s advice caused her to lose her job. She argued, inter alia, that the district court erred and that no legal malpractice expert testimony was required to create a material issue of fact regarding Defendants’ alleged breach of the standard of care. 

Plaintiff was hired by a dentist, and as part of her employment, she administered local anesthesia to patients. The New Mexico Board of Dental Health Care’s Dental Hygienist Committee (Committee), subsequently informed her that the Board’s records didn’t indicate she ever applied for or had been issued a Local Anesthesia Permit in New Mexico. The Committee voted to refer Plaintiff’s case to the Attorney General’s Office for the issuance of a Notice of Contemplated Action (NCA) for the violation of state statute. 

Plaintiff emailed Defendant Law Firm, explaining the situation with the Board and indicating that she was “already certified,” but that she couldn’t locate a copy of the certificate. Plaintiff stated that shed sent the Board proof of the requisite coursework and proof of her licensure to administer anesthesia in other states. Defendants responded to Plaintiff’s email and asked Plaintiff if she was currently working, and advised that [t]he [B]oard has not yet issued a ‘[c]ease and [d]esist’ so you should be able to work. 

The Law Firm sent two letters to the Board. The first one indicated that Defendants’ law firm was representing Plaintiff, noting that no “[c]ease and [d]esist” order was included in the Committee’s letter, and that Plaintiff had heard nothing from the Attorney General’s Office. Defendants cited Plaintiff’s current licensure as a dental hygienist, stating that “[u]ntil and unless the Board takes proper administrative action to suspend her license she will continue to practice. [Plaintiff is] not in a financial position to stop working.” Defendant attorney further noted that Plaintiff previously submitted all required paperwork relating to her anesthesia certificate, and suggested the Board search for her records under her former last name. The second letter attached copies of documents (also submitted by Plaintiff in an earlier letter) demonstrating that Plaintiff had previously applied for the requisite credentials for the administration of anesthesia. Plaintiff continued searching for her anesthesia certificate, but couldn’locate it. 

In January 2012, Defendants spoke with an Assistant Attorney General and sent her an email attaching Plaintiff’s licensing file, including copies of Plaintiff’s licenses to administer anesthesia in California, Colorado, and Utah, along with proof that she applied for the anesthesia certificate in New Mexico. Defendant attorney asked that the AAG discuss Plaintiff’s situation with the Board staff, to see if they might avoid a “compliance action,” and get back to him. 

No NCA action was issued against Plaintiff. She was notified that the Board had granted her application for a local anesthesia permit. 

In preparation for trial, Defendants filed the affidavit of an attorney who offered expert opinions on Defendants’ professional conduct in Plaintiff’s Dental Board matter. The legal malpractice expert regularly represented individuals and entities in an array of licensing Board proceedings in New Mexico. She stated in her affidavit that, in her opinion, Defendants’ handling of Plaintiff’s Board case from August 2011 to February 2012 was consistent with the standard of care for lawyers practicing in New Mexico at the time. Specifically, she stated that it was appropriate for Defendants to advise Plaintiff to retain counsel in response to the August 2011 letter from the Board, because, in her extensive experience, licensees have a much greater chance of success in disciplinary matters if they are represented by counsel, and boards are accustomed to such representation.  

The expert further opined that Defendants’ communication with the Board was timely, appropriate, informative, professional, represented good advocacy, and was addressed to the issues presented. The expert said that Defendants’ advice was correct, and not tantamount to advising Plaintiff to break the law.  

The court granted Defendants’ motion to dismiss, and dismissed Plaintiff’s complaint with prejudice. The appeal followed. 

Judge Linda M. Vanzi wrote the opinion of the New Mexico Court of Appeals, to which Chief Judge Miles Hanisee and Judge Julie J. Vargas concurred.  

Plaintiff argued that summary judgment in favor of Defendants on her malpractice claims was improper, because legal expert opinion evidence wasn’t necessary to demonstrate a breach of the standard of care in this case, where (according to Plaintiff) such breaches fall within the common knowledge of lay jurors.  

Judge Vanzi held that the breach of contract and malpractice claims both required a showing that Defendants breached the standard of care, “measured by the duty to apply the knowledge, care, and skill of reasonably well-qualified professionals practicing under similar circumstances,” citing a 1994 state supreme court decision. The case went on to say that in such cases, breach of the standard of care must be proved by expert testimony unless the case is one where exceptional circumstances within the common experience or knowledge of the layman are present.”  

Plaintiff claimed that expert testimony was unnecessary because a lay person could conclude that Defendants committed malpractice by effectively causing her to violate the law by advising Plaintiff that she could continue to work even after the Board’s issuance of the August 2011 letter. Judge Vanzi held that the undisputed material facts didn’t support this assertion. Plaintiff consistently maintained that, at the time the Committee referred Plaintiff to the Attorney General’s Office, she was certified to administer anesthesia in New Mexico but was unable to find proof of her certification. Plaintiff referred to the Board’s lack of a record of her certification as a “clerical error.” Plaintiff produced documentation proving that she completed anesthesia coursework, was licensed to perform anesthesia in other states, and had applied for certification in New Mexico. Thus, Defendants advised Plaintiff that she could continue working while they tried to resolve the issue of proving her certification—they did not advise her to work uncertified 

According to the legal malpractice expert, Defendants’ reliance on Plaintiff’s representations about her certification was reasonable, particularly given that Plaintiff had her own professional and ethical duties and was obligated to understand the requirements of licensure. The expert further opined that it was reasonable for Defendants to understand that the Board letter wasn’t a “cease and desist” request, in and of itself, but a notification that a proposed settlement including compliance with such an order would be forthcoming.  

Judge Vanzi opined that while Defendants’ advice that Plaintiff could continue working may not have been the most prudent advice, the Court of Appeals didn’t think that a lay person could conclude that it amounted to a directive that Plaintiff should violate the laws for certification for local anesthesia administration. 

Plaintiff asserted that, even if Defendants did not advise her to violate the law, it was obvious that Defendants should have warned Plaintiff about the potential consequences of continuing to administer anesthesia—including the possible revocation of her license. Not so, said Judge Vanzi. The potential impact on Plaintiff’s license, she noted, was apparent from the letter that led Plaintiff to seek counsel from Defendants in the first place. Plaintiff and Defendants’ email exchanges also implied that she understood the seriousness of the potential consequences, should she be unable to prove her certification status. As a result, the parties discussed her re-taking the requisite certification course and examination, which she did. The judge held that the reasonableness of Defendants’ failure to overtly advise Plaintiff that her license could be revoked, should she be unable to prove her certification status, required evidence of what a reasonable attorney would have done under the circumstances—evidence in the form of the testimony of lawyers.  

Plaintiff argued that, here, if Defendants hadn’t simply advised her to “sit tight,” and had instead advised her to obtain reciprocal certification (through reactivating her certification in another state), Plaintiff couldve obtained a new certification in New Mexico within six to eight weeks, and wouldn’t have lost her job. 

Judge Vanzi said that this was “precisely the sort of issue that requires expert testimony from a lawyer. Defendants advocated for Plaintiff through correspondence with the Committee and the Attorney General’s Office, and advised Plaintiff that becoming recertified in New Mexico through retaking the relevant course and exam may be the “path of least resistance” toward resolving her need for proof of certification. According to the legal malpractice expert, Defendants’ advice in this regard was sound, as it allowed Plaintiff the opportunity to either locate or replace her certification while avoiding the issuance of an NCA. A lay person would require guidance in order to weigh the reasonableness of Defendants’ strategy and counsel in light of Plaintiff’s contention that Defendants should have instead counseled her to reactivate a license in another state and seek reciprocity,” the judge went on to write. 

The Court of Appeals concluded that expert testimony was required to show a material dispute of fact on Plaintiff’s malpractice claims, and that Defendants set forth facts showing no breach of the standard of careDefendants negated the element of breach through an affidavit from the legal malpractice expert. These facts were deemed admitted.  

The decision was affirmed.