Professional Malpractice & Ethics

Weekly Summaries Distributed July 31, 2015 Klotz v. Milbank,Tweed, Hadley & McCloy Business Law, Legal Ethics, Professional Malpractice & Ethics  California Court of Appeal Taylor v. Cottrell, Inc. Civil Procedure, Injury Law, Professional Malpractice & Ethics  U.S. Court of Appeals for the Eighth Circuit Johnson v. Alexander Legal Ethics, Professional Malpractice & Ethics, Real Estate & Property Law  South Carolina Supreme Court Wells Fargo Bank, N.A. v. Fonder Injury Law, Professional Malpractice & Ethics, Real Estate & Property Law  South Dakota Supreme Court

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Klotz v. Milbank,Tweed, Hadley & McCloy Court: California Court of Appeal Docket:B255827 Opinion Date: July 28, 2015 Areas of Law: Business Law, Legal Ethics, Professional Malpractice & Ethics Plaintiffs filed suit alleging claims for breach of fiduciary duty, conspiracy, and legal malpractice, and defendants moved to strike the entire complaint as to the individual plaintiffs Klotz and Spitz because defendants had no independent legal duty to plaintiffs nor did they act for their personal financial gain. Plaintiffs alleged that a former business associate of theirs, Stephen Bruce, who was a client of defendants, conspired with defendants to unlawfully withdraw from plaintiff SageMill and to usurp a nascent business opportunity of SageMill. The trial court denied the motion. The court reversed the trial court‘s order on plaintiffs‘ second cause of action for conspiracy as to the individual plaintiffs Klotz and Spitz, finding that any advice defendants gave Bruce arose from an attempt to contest or compromise a claim or dispute, and thus was within the ambit of section 1714.10. The court affirmed as to the remaining claims. http://j.st/4mSd View Case On: Justia Google Scholar

Taylor v. Cottrell, Inc. Court: U.S. Court of Appeals for the Eighth Circuit Docket: 14-2943 Opinion Date: July 29, 2015 Areas of Law: Civil Procedure, Injury Law, Professional Malpractice & Ethics Taylor was injured while attempting to secure a vehicle on a Cottrell car-hauling trailer. Dr. Odor operated on Taylor to complete a two-level cervical fusion. More than two years later, Taylor was again injured when he fell approximately 10 feet from a Cottrell trailer. He was taken to the emergency room and was discharged home with pain medication. The same month, Taylor reported to Dr. Odor with neck and back pain. After testing, Dr. Odor observed several disc protrusions and a disc desiccation. These injuries led to another complex spinal surgery with Dr. Odor, the cost of which exceeded $450,000. Two weeks before trial Cottrell claimed it had uncovered copies of agreements between Taylor's counsel and Dr. Odor which evidenced an impermissible contingent-fee agreement. The court found there was a contingency agreement and excluded Odor’s testimony as an expert witness, dismissed claims for Taylor's neck and back injuries, and stayed claims related to shoulder injuries. The Eighth Circuit reversed; the district court failed to articulate the precise interest Odor had in the outcome of the litigation and failed to explain why any such interest overcomes the general rule that Odor's bias and credibility should be resolved by the jury. http://j.st/4mTn View Case On: Justia Google Scholar

Johnson v. Alexander Court: South Carolina Supreme Court Docket:27553 Opinion Date: July 29, 2015 Areas of Law: Legal Ethics, Professional Malpractice & Ethics, Real Estate & Property Law Amber Johnson filed suit against her closing attorney, Stanley Alexander, arguing he breached his duty of care by failing to discover the house Johnson purchased had been sold at a tax sale the previous year. The trial court granted partial summary judgment in favor of Johnson as to Alexander's liability. On appeal, the court of appeals held Alexander could not be held liable as a matter of law simply because the attorney he hired to perform the title work may have been negligent. Instead, the court determined the relevant inquiry was "whether Alexander acted with reasonable care in relying on [another attorney's] title search"; accordingly, it reversed and remanded. The Supreme Court reversed the court of appeals: even absent Alexander's admissions, the Court found it was error to equate delegation of a task with delegation of liability. The Court therefore agreed with Johnson that an attorney was liable for negligence in tasks he delegates absent some express limitation of his representation. Applying this standard to the facts, the Court found the grant of summary judgment was proper because there was no genuine issue of material fact as to liability. The case was remanded back to the trial court for a determination of damages. http://j.st/4mGo View Case On: Justia Google Scholar

Wells Fargo Bank, N.A. v. Fonder Court: South Dakota Supreme CourtCitation: 2015 S.D. 66 Opinion Date: July 29, 2015 Areas of Law: Injury Law, Professional Malpractice & Ethics, Real Estate & Property Law Matthew and Caralynn Fonder purchased a home and obtained a mortgage from Wells Fargo Bank, N.A. Wells Fargo selected Wells Fargo Insurance, Inc. Flood Services (WFFS) to conduct a flood hazard determination on the Fonders’ home. WFFS determined the home was not in a special flood hazard area, and therefore, the Bank did not require the Fonders to obtain flood insurance. A flood later destroyed the Fonders’ home. Wells Fargo later filed a complaint to foreclose on the Fonders’ home. The Fonders cross-claimed against WFFS seeking to recover damages sustained a result of their reliance on WFFS’s erroneous flood determination. The circuit court dismissed the cross-claim for failure to state a claim and dismissed the Fonders’ motion to amend their third-party complaint to assert a claim of negligent misrepresentation on the grounds that WFFS did not owe the Fonders a duty. The Supreme Court affirmed in part and reversed in part, holding (1) the circuit court erred when it dismissed the Fonders’ claims for professional negligence and negligent infliction of emotional distress but did not err in dismissing the Fonders’ breach-of-fiduciary duty claim; and (2) upon remand, the Fonders may amend their cross-claim to include negligent misrepresentation. http://j.st/4mpK View Case On: Justia Google Scholar

Professional Malpractice & Ethics

Weekly Summaries Distributed July 23, 2015 Pines v. Idaho Board of Medicine Government & Administrative Law, Professional Malpractice & Ethics  Idaho Supreme Court - Civil Farmer v. Banco Popular Legal Ethics, Professional Malpractice & Ethics  U.S. Court of Appeals for the Tenth Circuit Lomont v. Myer-Bennett Family Law, Legal Ethics, Professional Malpractice & Ethics  Louisiana Supreme Court Moje v. Federal Hockey League LLC Civil Procedure, Legal Ethics, Professional Malpractice & Ethics  U.S. Court of Appeals for the Seventh Circuit Choice Hotels Int'l Inc. v. Grover Civil Procedure, Legal Ethics, Professional Malpractice & Ethics  U.S. Court of Appeals for the Seventh Circuit Peterson v. Katten Muchin Rosenman LLP Legal Ethics, Professional Malpractice & Ethics  U.S. Court of Appeals for the Seventh Circuit Martinez v. Dept. of Transportation Civil Procedure, Government & Administrative Law, Legal Ethics, Professional Malpractice & Ethics  California Court of Appeal Allen v. McCann Labor & Employment Law, Professional Malpractice & Ethics  Maine Supreme Judicial Court Skipper v. ACE Property Insurance Law, Legal Ethics, Injury Law, Professional Malpractice & Ethics  South Carolina Supreme Court Johnson v. Hayman & Assocs., Inc. Injury Law, Professional Malpractice & Ethics  South Dakota Supreme Court Colafranceschi v. Briley Family Law, Government & Administrative Law, Professional Malpractice & Ethics  Idaho Supreme Court - Civil United States v. Bloodman Criminal Law, Legal Ethics, Professional Malpractice & Ethics  U.S. Court of Appeals for the Eighth Circuit Stewart v. Partamian Medical Malpractice, Professional Malpractice & Ethics  Supreme Court of Missouri Moncrief v. Clark Civil Procedure, Legal Ethics, Professional Malpractice & Ethics  California Court of Appeal

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Pines v. Idaho Board of Medicine Court: Idaho Supreme Court - Civil Docket:41972 Opinion Date: June 22, 2015 Areas of Law: Government & Administrative Law, Professional Malpractice & Ethics Richard Pines, D.O. appealed the district court’s decision on a disciplinary order of the Idaho Board of Medicine. The Board brought disciplinary proceedings against Pines following reports that he had induced young men into sexual contact by saying he was required to give full-body massages to naked practice patients in order to be relicensed as a doctor of osteopathy. Following a hearing, the Board found Pines committed four counts of professional misconduct. It revoked Pines’ license and ordered that he pay costs and attorney fees. The district court affirmed the four counts of misconduct but vacated the award of costs and attorney fees. Pines appealed and the Board cross-appealed. Before the Supreme Court, Pines argued: (1) that he was disciplined for uncharged conduct, resulting in a violation of his due process rights; (2) that evidence in the record was insufficient to support certain alleged violations made against him; (3) that as applied, his due process rights were violated by the Board's conclusion that four individuals were Pines' patients. The Board argued that the district court erred in vacating the Board's order on attorney fees and costs. Upon review of the record, the Supreme Court found that two of the "patients" were not, indeed, Pines' patients, and that Pines' due process rights were not violated. The Court affirmed the Board's decision on Counts I and II, but vacated the district court's decision on Counts III and V (which pertained to the two "patients"). The case was remanded for further proceedings, including additional consideration of the issue of costs and fees. http://j.st/4WGv View Case On: Justia Google Scholar

Farmer v. Banco Popular Court: U.S. Court of Appeals for the Tenth Circuit Docket: 14-1423 Opinion Date: June 30, 2015 Areas of Law: Legal Ethics, Professional Malpractice & Ethics Pro se plaintiff George Farmer, a resident of Colorado and a licensed attorney, sued defendant Banco Popular under federal and state law to challenge Banco’s demand that he pay off the full amount owed under a $150,000 Home Equity Line of Credit (HELOC) his deceased father obtained in 2001. In 2012, the parties informed the district court they had reached a settlement: Banco was to pay Farmer $30,000 and forgive some principal, unpaid interest, and attorney’s fees. Farmer would pay $137,380.94 in satisfaction of the HELOC, due later that year. Farmer “began to negotiate a number of the . . . terms of the draft agreement.” Banco “sent Farmer the completed settlement agreement, but Farmer sought changes to the exhibits.” These exhibits included a deed in lieu of foreclosure and a satisfaction of mortgage. After Farmer received the revised exhibits he still would not sign the settlement agreement, but “again sought more changes, including the amount, timing, and structure of the payment.” Banco ultimately filed a motion to enforce the settlement agreement. Notwithstanding his prior representations to the court, Farmer sought to reduce his net payment of $107,380.34 under the terms of the agreement to $100,000, but pay it byOctober 1 rather than by October 15. The court held another hearing onSeptember 10 at which Farmer again told the court the settlement was fine: “‘[W]e are all in agreement to enforce the settlement,’ and ‘the only thing that remains is the date that my payment is due.’” The parties then agreed that Banco would not pay Farmer $30,000 as previously agreed, but instead, Farmer would pay Banco $107,380.34 by November 15, 2012. “Banco Popular sent Farmer an agreement reflecting the new amount and due date, but instead of signing, Farmer asked for changes and additions. Banco Popular refused most of those changes and asked Farmer to sign the revised agreement, which he never did.” A prior Tenth Circuit decision recited, in detail, Farmer’s ongoing conduct that led the district judge to “warn that he would impose the most severe sanctions and penalties if the parties did not comply with his order” enforcing the settlement. "Now here we are again:" Farmer appealed the district court order imposing fees and costs on him as a punitive sanction. The Tenth Circuit affirmed the district court's order, as modified: sanctions imposed on Farmer in the form of fees and costs due and payable to Banco totaled $50,824.53; Farmer was admonished that further prolongation of this appeal absent good cause would result in the Court imposing its own monetary sanctions on him pursuant to Fed. R. App. P. 38. The Clerk of Court was directed to initiate a formal attorney disciplinary proceeding for the Court to consider further whether additional discipline is appropriate. http://j.st/4Wed View Case On: Justia Google Scholar

Lomont v. Myer-Bennett Court: Louisiana Supreme Court Docket:2014-C-2483 Opinion Date: June 30, 2015 Areas of Law: Family Law, Legal Ethics, Professional Malpractice & Ethics This was a legal malpractice case. Defendant Michelle Myer-Bennett filed a peremptory exception of peremption asserting plaintiff Tracy Lomont filed her malpractice claim beyond the three-year peremptive period set forth in La. R.S. 9:5605. Lomont opposed the exception, arguing the peremptive period should not have applied because Myer-Bennett engaged in fraudulent behavior which prevented application of the peremptive period. Lomont hired Myer-Bennett to represent her in a divorce and related domestic matters, which included partitioning the community property. Citibank obtained a default judgment against John Lomont (the ex-husband) on a delinquent account. Citibank recorded the judgment in the mortgage records in Jefferson Parish as a lien against the home. Lomont attempted to refinance the mortgage on the home and learned from the bank that the settlement agreement, giving her full ownership of the home, was never recorded in the mortgage and conveyance records. Lomont contacted Myer-Bennett to advise her of the problem. According to Myer-Bennett, because it was her standard practice to record such documents, she initially believed Lomont was given inaccurate information by the bank. Upon investigation, Myer-Bennett discovered that she had not recorded the agreement. Myer-Bennett recorded the agreement the next day, September 30, 2010. In December 2010, Lomont was notified that her application to refinance the loan was denied because of Citibank’s lien on the property. According to Myer-Bennett, once she became aware of the Citibank lien she discussed with Lomont the fact she committed malpractice and gave Lomont several options to proceed, including hiring another lawyer to sue her, or allowing Myer-Bennett to file suit against John Lomont and/or Citibank to have the lien removed. Myer-Bennett stated. Lomont chose not to pursue a malpractice action, but wanted defendant to fix the problem. Lomont denied Myer-Bennett ever notified her she had committed malpractice. Lomont contended Myer-Bennett never mentioned malpractice in December 2010, but simply advised she would have the Citibank lien removed from the property by filing lawsuits against John Lomont and Citibank. The district court sustained the exception of peremption and the court of appeal affirmed. Based on the facts of this case, the Supreme Court found defendant committed fraud within the meaning of La. R.S. 9:5605(E). Thus, the peremptive periods contained in La. R.S. 9:5605 were not applicable and plaintiff’s legal malpractice claim was governed by the one-year prescriptive period in La. C.C. art. 3492. Further, the facts of this case supported an application of the doctrine of contra non valentem. Because the Court found plaintiff filed suit within one year of discovering defendant’s malpractice, the Court held the lower courts erred in sustaining defendant’s exception of peremption. http://j.st/4Wnp View Case On: Justia Google Scholar

Moje v. Federal Hockey League LLC Court: U.S. Court of Appeals for the Seventh Circuit Docket: 15-1097 Opinion Date: July 7, 2015 Areas of Law: Civil Procedure, Legal Ethics, Professional Malpractice & Ethics Moje, playing minor league hockey, lost an eye during a game, and sued Oakley, which made his visor, and the League. Instead of notifying its insurer, the League hired LoFaro. Oakley’s attorney called the League’s President, to ask why it had not answered the complaint. LoFaro claimed that an answer had been filed, but the docket did not reflect any filing. Moje moved for default. LoFaro did not respond, nor did he respond after the court entered the default and permitted Moje to prove damages. The court entered a final judgment of $800,000 against the League. After the League learned of collection efforts, it notified its insurer. A lawyer hired by the insurer unsuccessfully moved, under Fed. R. Civ. P. 60(b)(1) to set aside the judgment within six months of its entry. Rule 60(b)(1), allows relief on account of “mistake, inadvertence, surprise, or excusable neglect.” The Seventh Circuit affirmed. Abandoned clients who take reasonable steps to protect themselves can expect to have judgments reopened under Rule 60(b)(1), but the League is not in that category. Its remedy is against LoFaro. http://j.st/4WuF View Case On: Justia Google Scholar

Choice Hotels Int'l Inc. v. Grover Court: U.S. Court of Appeals for the Seventh Circuit Docket: 14-3294 Opinion Date: July 7, 2015 Areas of Law: Civil Procedure, Legal Ethics, Professional Malpractice & Ethics Choice Hotels sued SBQI, its managers, and investors, for breach of a franchise agreement. The defendants did not answer the complaint. The court entered a default. One defendant, Chawla, an Illinois attorney, had represented the others. Other defendants asked Chawla to find a new attorney. They claimed that they had been unaware that their signatures were on the franchise agreement and that the signatures are forgeries. Johnson agreed to try to vacate the default, negotiate a settlement, and defend against the demand for damages. Johnson filed an appearance and took some steps, but did not answer the complaint or move to vacate the default, engage in discovery concerning damages, or reply to a summary judgment motion on damages. In emails, Johnson insisted that he was trying to settle the litigation. He did not return phone calls. The court set damages at $430,286.75 and entered final judgment. A new attorney moved to set aside the judgment more than a year after its entry, under Fed. R. Civ. P. 60(b)(6), which covers “any other reason that justifies relief” and requires “extraordinary circumstances.” The Seventh Circuit affirmed. The defendants must bear the consequences of their inaction. They were able to monitor the proceedings, but did not follow through. http://j.st/4Wut View Case On: Justia Google Scholar

Peterson v. Katten Muchin Rosenman LLP Court: U.S. Court of Appeals for the Seventh Circuit Docket: 14-3632 Opinion Date: July 7, 2015 Areas of Law: Legal Ethics, Professional Malpractice & Ethics Bell established mutual funds, raised $2.5 billion, and invested in vehicles managed by Petters, who said that he was financing Costco’s electronics inventory. Instead he was running a Ponzi scheme, which collapsed in 2008. The scheme involved a claim that money lent to Petters entities was secured by Costco’s inventory and that repayment was ensured by a “lockbox” arrangement under which Costco would make payments into accounts that the Funds (not Petters) controlled. Petters insisted that the Funds not contact Costco, to avoid upsetting his favorable business relations. Bell and Petters went to prison for fraud. The Funds’ trustee in bankruptcy filed multiple suits. The district court dismissed a claim of legal malpractice. The Seventh Circuit reversed. Even if Bell was determined to do business with Petters, the Fund’s lawyers ould have explained how to structure the transactions in a less risky way, and if Petters refused to cooperate then Bell might have reconsidered lending the Funds’ money. The Trustee alleges that the firm did not offer any advice about how relative risks correspond to different legal devices, and its complaint states a legally recognized claim. Whether the law firm has a defense, and whether any neglect on its part caused injury, are subjects for the district court. http://j.st/4WLn View Case On: Justia Google Scholar

Martinez v. Dept. of Transportation Court: California Court of Appeal Docket:G048375 Opinion Date: July 7, 2015 Areas of Law: Civil Procedure, Government & Administrative Law, Legal Ethics, Professional Malpractice & Ethics "This is a case of egregious attorney misconduct." Because of the cumulative effect of the attorney's misconduct, the Court of Appeal felt compelled to reverse the judgment she obtained on behalf of her client, Caltrans. "While Judge Di Cesare showed the patience of Job – usually a virtue in a judge – that patience here had the effect of favoring one side over the other. He allowed [the attorney] to emphasize irrelevant and inflammatory points concerning the plaintiff's character so often that he effectively gave CalTrans an unfair advantage." http://j.st/4Wan View Case On: Justia Google Scholar

Allen v. McCann Court: Maine Supreme Judicial Court Citation:2015 ME 84 Opinion Date: July 14, 2015 Areas of Law: Labor & Employment Law, Professional Malpractice & Ethics Plaintiff was injured while working at a paper mill. Plaintiff hired Defendant, an attorney, to represent her in her workers’ compensation claim. The Workers’ Compensation Board awarded Plaintiff, still represented by Defendant, partial incapacity benefits. Plaintiff later settled with her employer. Plaintiff subsequently filed a complaint against Defendant, alleging that, due to Defendant’s failure to exercise due care and negligence, she was awarded partial incapacity benefits rather than total incapacity benefits. The superior court granted summary judgment in favor of Defendant. The Supreme Judicial Court affirmed, holding that summary judgment was correctly granted where the jury could not assess damages without resorting to speculation. http://j.st/4WHH View Case On: Justia Google Scholar

Skipper v. ACE Property Court: South Carolina Supreme Court Docket:27547 Opinion Date: July 15, 2015 Areas of Law: Insurance Law, Legal Ethics, Injury Law, Professional Malpractice & Ethics Georgia citizen George Skipper was involved in a motor vehicle accident with a logging truck that was driven by Harold Moors and owned by Specialty Logging, LLC. Specialty had a commercial automobile insurance policy with a $1,000,000 per occurrence limit, which was issued by ACE Property and Casualty Insurance Company (ACE). Following the accident, Skipper retained an attorney who wrote a demand letter to ACE offering to settle the case for the limits of the Policy. ACE retained two lawyers from Atlanta, Brantley Rowlen and Erin Coia, to represent Specialty and Moors. Specialty and Moors offered Skipper $50,000. Not satisfied with that offer, Skipper and his wife filed a lawsuit in the Allendale County Court of Common Pleas against Specialty and Moors. Unbeknownst to ACE or its attorneys, the Skippers entered into a settlement with Specialty and Moors, agreeing to execute a Confession of Judgment for $4,500,000, in which they admitted liability for the Skippers' injuries and losses. The Specialty Parties also agreed to pursue a legal malpractice claim against ACE and its attorneys Rowlen and Coia, and assigned the predominant interest in that claim to the Skippers.1 In exchange for the Specialty Parties' admission of liability, the Skippers agreed not to execute the judgment as long as the Specialty Parties cooperated in the legal malpractice litigation against Defendants. Armed with the assignment, the Skippers and Specialty Parties filed a legal malpractice action against the attorneys, also with the Allendale County court. The case was removed to the United States District Court for the District of South Carolina. In federal court, ACE and its attorneys argued that the assignment of the malpractice claim was invalid and that the Skippers had no valid claims to assert. Because the question of whether a legal malpractice claim could be assigned between adversaries in litigation in which the alleged malpractice arose was a novel question in South Carolina, the South Carolina Supreme Court accepted a certified question South Carolina law from the federal district court. After review, the South Carolina Court held that in South Carolina, the assignment of a legal malpractice claim between adversaries in litigation in which the alleged malpractice arose was prohibited. http://j.st/4W9N View Case On: Justia Google Scholar

Johnson v. Hayman & Assocs., Inc. Court: South Dakota Supreme CourtCitation: 2015 S.D. 63 Opinion Date: July 15, 2015 Areas of Law: Injury Law, Professional Malpractice & Ethics After Fannie Mae foreclosed upon and acquired the home at issue in this case, Fannie Mae hired Hayman Residential Engineering Services, Inc. to prepare a structural engineering report on the home. Based on the report, Fannie Mae made some of the recommended repairs. Fannie Mae subsequently sold the home to buyers, who then sold the home to Roger and Dorothy Johnson. Thereafter, the Johnsons discovered that the estimated cost of making all necessary repairs to the home exceeded its value. The Johnsons filed a professional negligence claim against Hayman. The circuit court granted summary judgment in favor of Hayman, concluding that Hayman did not owe the Johnsons a duty. The Supreme Court affirmed, holding that Hayman did not owe a professional duty to the Johnsons because they did not suffer a foreseeable harm stemming from Hayman’s alleged negligence, and therefore, a professional negligence claim could not be established. http://j.st/4WCm View Case On: Justia Google Scholar

Colafranceschi v. Briley Court: Idaho Supreme Court - Civil Docket:41742 Opinion Date: July 16, 2015 Areas of Law: Family Law, Government & Administrative Law, Professional Malpractice & Ethics Mark Colafranceschi brought this action for defamation and professional malpractice against Shawn Briley and Ashley Robinson after a magistrate court appointed Robinson to perform child custody evaluations in two separate cases in which Colafranceschi was a party. Colafranceschi was the plaintiff in two actions against the mothers of his children. Robinson was a licensed masters social worker. Briley was a licensed clinical social worker and was Robinson’s supervisor. In both reports in the two cases, Robinson's evaluations (as Colafranceschi's claim suggested) "did not cast him in a positive light." The district court dismissed the action, finding that quasi-judicial immunity barred Colafranceschi’s claims. Finding no reversible error, the Supreme Court affirmed. http://j.st/4WCV View Case On: Justia Google Scholar

United States v. Bloodman Court: U.S. Court of Appeals for the Eighth Circuit Docket: 14-2935 Opinion Date: July 17, 2015 Areas of Law: Criminal Law, Legal Ethics, Professional Malpractice & Ethics When Bloodman withdrew as Haynes’s attorney in a criminal case, the judge ordered her to return discovery material “as soon as possible” and emailed the order, instructing her “to turn over to the United States Attorney’s Office any and all discovery material previously provided her by the Government.” After 20 days, she had not returned the material. The judge issued an order to return it within a week, or risk a show-cause order and sanctions. Bloodman, no longer on the electronic filing system, did not receive the email; the clerk mailed her a hard copy. She still had not returned the material 11 days later. The judge emailed her a show-cause order. Bloodman sent the material the next day via overnight mail, though delivery was delayed due to weather. At the show-cause hearing, Bloodman apologized. She claimed not to receive the second order, the only one to set an exact date and to have had medical issues. The judge did not find bad faith or hold her in contempt, but ordered her to pay $250 for the government’s “time and effort and energy.” The Eighth Circuit dismissed an appeal for lack of jurisdiction because Haynes’s criminal case is still pending. http://j.st/4WFi View Case On: Justia Google Scholar

Stewart v. Partamian Court: Supreme Court of Missouri Docket:SC94120 Opinion Date: July 21, 2015 Areas of Law: Medical Malpractice, Professional Malpractice & Ethics Respondent filed a medical negligence lawsuit alleging that Appellants negligently failed to timely drain Respondent’s prostate abscess, causing the abscess to rupture. After a trial, the jury returned a verdict in Respondent’s favor. The Supreme Court affirmed, holding (1) Appellants did not preserve for review their argument that the trial court erred in admitting into evidence certain videotaped deposition testimony; (2) the trial court did not err in failing to find that the verdict was excessive due to jury passion and prejudice or because it exceeded fair and reasonable compensation for Respondent’s injuries; and (3) the Court will not address Appellants’ constitutional challenge to Mo. Rev. Stat. 538.300, which prohibits defendants in medical negligence cases from seeking remittitur, because the statutory prohibition in section 538.300 was not implicated in this case. http://j.st/4mZ3 View Case On: Justia Google Scholar

Professional Malpractice & Ethics

Weekly Summaries Distributed June 5, 2015 Desetti v. Chester Professional Malpractice & Ethics  Supreme Court of Virginia

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Desetti v. Chester Court: Supreme Court of Virginia Docket:141239 Opinion Date: June 4, 2015 Areas of Law: Professional Malpractice & Ethics Plaintiff retained Defendant to represent her in a criminal matter. After a trial, Plaintiff was found guilty of felony assault and battery. Plaintiff subsequently filed a petition for writ of habeas corpus alleging that she was deprived of her constitutional right to effective assistance of counsel. The habeas court granted the petition and vacated Plaintiff’s conviction, concluding that Defendant’s representation was constitutionally deficient. Plaintiff subsequently pled guilty to misdemeanor assault and battery. Thereafter, Plaintiff filed a legal malpractice claim against Defendant alleging that Defendant’s actions during the original criminal matter constituted malpractice. The circuit court sustained Defendant’s demurrer to the complaint, concluding that Plaintiff failed to state a claim because she was not actually innocent of the criminal act of assault that gave rise to the criminal matter in which the alleged malpractice occurred. The Supreme Court affirmed, holding that Plaintiff failed to satisfy her burden of pleading that the pecuniary injury she sought to recover was proximately caused by Defendant’s legal malpractice, rather than being proximately caused by her criminal actions. http://j.st/4Pz4 View Case On: Justia Google Scholar

Professional Malpractice & Ethics

Weekly Summaries Distributed May 29, 2015 Johnson v. Mid Dakota Clinic, P.C. Health Law, Medical Malpractice, Injury Law, Professional Malpractice & Ethics  North Dakota Supreme Court Sela v. Medical Board of Cal. Professional Malpractice & Ethics  California Court of Appeal

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Johnson v. Mid Dakota Clinic, P.C. Court: North Dakota Supreme CourtCitation: 2015 ND 135 Opinion Date: May 27, 2015 Areas of Law: Health Law, Medical Malpractice, Injury Law, Professional Malpractice & Ethics Joan Johnson, as personal representative of the Estate of Herman B. Johnson, and Marguerite Johnson, Herman Johnson's widow, appealed a district court's grant of summary judgment dismissing their action against Mid Dakota Clinic. On the morning of December 18, 2012, Herman Johnson experienced confusion and swelling of his legs and calves. That morning, Joan Johnson, Herman Johnson's daughter and attorney-in-fact, called the Veteran's Administration Clinic to schedule an appointment for Herman, but the VA Clinic did not return her call. As a result, Joan Johnson called Mid Dakota to schedule an appointment. Although she had requested a specific doctor, she was advised she would not be able to see him that day and was given an appointment with Donald Grenz, M.D. later that afternoon. Upon arriving at Mid Dakota Clinic at Gateway Mall, Joan and Herman Johnson checked in with the receptionist approximately seven minutes late for the appointment. Because they were more than five minutes late, they were told Dr. Grenz would not see them but they could reschedule with Dr. Grenz for another day or go to the emergency room or the "Today Clinic," a walk-in clinic within Mid Dakota's main clinic downtown. Joan and Herman Johnson subsequently left the clinic to seek alternative care. Upon entering the east vestibule of the Gateway Mall, Joan Johnson decided to seek the assistance of the VA Clinic, which was located in the mall immediately adjacent to Mid Dakota. As Joan and Herman Johnson turned to re-enter the mall, Herman Johnson fell and hit his head on the floor of the vestibule. As a result, he suffered a laceration along his forehead. Joan Johnson then returned to Mid Dakota and announced that Herman Johnson had fallen and was injured. A registered nurse employed by Mid Dakota assisted Herman Johnson until he was taken by ambulance to St. Alexius Medical Center and was admitted for observation. While Herman Johnson was hospitalized, he suffered two episodes of respiratory arrest, and he died on December 27, 2012. The Johnsons sued Mid Dakota for negligence, breach of contract and professional negligence. Because the Johnsons failed to present sufficient evidence to raise genuine issues of material fact precluding summary judgment, the Supreme Court affirmed the district court's judgment. http://j.st/4PXo View Case On: Justia Google Scholar

Sela v. Medical Board of Cal. Court: California Court of Appeal Docket:B253860 Opinion Date: May 28, 2015 Areas of Law: Professional Malpractice & Ethics Petitioner appealed the denial of his petition for writ of mandate, seeking to set aside the Board's decision rejecting petitioner's request for early termination of the probationary restrictions on his medical license. The Board revoked petitioner’s medical license, finding that he had engaged in sexual abuse and sexual misconduct during gynecological pelvic examinations. The court concluded that because the Board decision operated to restrict petitioner’s medical license, Bus. & Prof. Code 2337 applies to and controls the method of appellate review of the trial court’s ruling upholding the Board’s decision. Therefore, the trial court’s judgment denying petitioner’s petition for writ of mandate is not appealable. The court declined to exercise its discretion to treat petitioner's unauthorized appeal as a petition for an extraordinary writ. Accordingly, the court dismissed the appeal. http://j.st/4PXw View Case On: Justia Google Scholar