Justia Professional Malpractice & Ethics Opinion Summaries

by
The Supreme Court affirmed the order of the district court granting summary judgment in favor of ALPS Property & Casualty Insurance Company and declaring that ALPS owed no duty to defend or indemnify Defendants in a malpractice suit, holding that the district court correctly granted summary judgment to ALPS.ALPS brought this action seeking a declaration that it owed no duty to defendant or indemnify Keller, Reynolds, Drake, Johnson & Gillespie, P.C. (the firm) or any of its members for claims Bryan Sandrock, GG&ME, LLC and DRAES, Inc. (collectively, Sandrock) asserted in a malpractice suit against the firm and three of its attorneys. In granting summary judgment for ALPS, the district court held that the firm's ALPS policy did not provide coverage for Sandrock's claim. The Supreme Court affirmed, holding that the district court correctly concluded that there was no coverage under the policy because a member of the firm knew the basis of the legal malpractice claim before the effective date of the policy. View "ALPS Property & Casualty Insurance Co. v. Keller" on Justia Law

by
Carrie Thompson-Widmer appealed the dismissal of her claims of defamation and tortious interference with a business relationship against Kimberly Larson, Wells County, Eddy County, and Foster County. In January 2017, Larson filed a formal complaint with the State Board of Social Work Examiners against Thompson-Widmer on the basis of Thompson-Widmer’s actions in two child protection services cases. Larson alleged Thompson-Widmer misrepresented information about a child’s home environment in one case, and altered a report about methamphetamine in an infant’s meconium in the other case. Larson also met with a state’s attorney about Thompson-Widmer’s actions. The attorney referred the matter to a special prosecutor for consideration of potential criminal charges. Because the complaint to the State Board was filed while Thompson-Widmer was a Tri-County employee, Larson placed the complaint and the supporting documents in Thompson-Widmer’s employee personnel file. After the criminal investigation into Thompson-Widmer’s action was suspended, she became employed with Catholic Charities in April 2017. Tri-County worked with Catholic Charities on adoption placement cases. Larson’s staff informed her they did not feel comfortable working with Thompson- Widmer. Larson notified Catholic Charities that Tri-County would rather work with someone other than Thompson-Widmer. Catholic Charities submitted an open records request for Thompson-Widmer’s personnel file, and Larson fulfilled the request on Tri-County’s behalf. In May 2017, after receiving the personnel file, which included Larson’s complaint against Thompson-Widmer, Thompson-Widmer was terminated because she was not forthcoming about her issues while employed by Tri-County. After review, the North Dakota Supreme Court affirmed, concluding Larson’s communications were privileged and therefore not subject to liability for defamation. View "Thompson-Widmer v. Larson, et al." on Justia Law

by
Rebecca Burr appealed a district court judgment dismissing her complaint against the North Dakota Board of Dental Examiners. In mid-2019, Burr filed a complaint with the North Dakota Board of Dental Examiners alleging a dentist previously licensed by the Board committed aggravated assault and permanently maimed her in 1989. Her original complaint to the Board stated she had reached out to the Board in 1996 by sending a letter outlining some of the same complaints that were in the 2019 formal complaint. The Board responded to Burr’s complaint with a formal letter stating that it had determined “there is not a reasonable basis to believe that a violation of NDCC 43-28-18 or the rules promulgated by the Board occurred” and that the matter was dismissed without any action having been taken. In January 2020, Burr served the Office of Management and Budget (“OMB”) a notice of claim in the amount of $250,000, alleging that the Board failed to satisfy its legal obligation to investigate her claim “and that the failure to do so caused Ms. Burr further harm, pain and suffering.” In February 2020, OMB notified Burr by letter that her claim had been denied. Burr did not pursue an administrative appeal of that decision. She then commenced this action by serving the Board and OMB with a summons and complaint in May 2020. The district court granted the Board’s motion to dismiss, finding it lacked jurisdiction, and concluding that the Board was entitled to both quasi-judicial immunity and discretionary immunity. On appeal, Burr argued the district court erred in concluding that the Board was entitled to discretionary immunity and in dismissing her complaint for failure to state a claim upon which relief can be granted. Finding no reversible error, the North Dakota Supreme Court affirmed. View "Burr v. N.D. State Board of Dental Examiners" on Justia Law

by
Cutchin’s wife and daughter were killed in an automobile accident that occurred when another driver, Watson, age 72, struck their vehicle. Cutchin alleges that Watson’s driving ability was impaired by medications she had been prescribed, including an opioid. Cutchin filed a malpractice suit against Watson’s healthcare providers, charging them with negligence for an alleged failure to warn Watson that she should not be driving given the known motor and cognitive effects of those medications. After the providers and their malpractice insurer agreed to a settlement of $250,000, the maximum amount for which they can be held individually liable under the Indiana Medical Malpractice Act (MMA), Cutchin sought further relief from the Patient’s Compensation Fund, which acts as an excess insurer. The Fund argued that the MMA does not apply to Cutchin’s claim and that he is barred from seeking excess damages from the Fund. The district court agreed.The Seventh Circuit certified to the Indiana Supreme Court the questions: Whether Ithe MMA prohibits the Fund from contesting the Act’s applicability to a claim after the claimant concludes a court‐approved settlement with a qualified healthcare provider, and whether the MMA applies to claims brought against individuals (survivors) who did not receive medical care from the provider, but who are injured as a result of the provider’s negligence in providing medical treatment to someone else. View "Cutchin v. Robertson" on Justia Law

by
The Supreme Court affirmed the final judgment of the circuit court dismissing, for lack of jurisdiction, Petitioner's petition to impeach Honolulu City Prosecutor Keith Kaneshiro under section 12-203 of the Revised Charter of the City and County of Honolulu, holding that Hawaii's Uniform Electronic Transactions Act (UETA), Haw. Rev. Stat. Chapter 489E, did not apply to the petitions for impeachment in this case.Haw. Rev. Stat. 489E-7(d) states, "If a law requires a signature, an electronic signature satisfies the law." However, Haw. Rev. Stat. 489E-18(c) states that the UETA "does not require a governmental agency of this State to use or permit the use of electronic records or electronic signatures." In his motion to dismiss, Kaneshiro argued that electronic signatures did not satisfy the requirements for a petition to impeach the city prosecutor. The circuit court granted the motion, concluding that signatories to an impeachment petition under section 12-203 of the Revised Charter must provide handwritten signatures. The Supreme Court affirmed, holding that the UETA did not apply in this case. View "Yoshimura v. Kaneshiro" on Justia Law

by
The Supreme Court reversed the portion of the court of appeals' judgment declaring that the rules issued by the Texas Board of Chiropractic Examiners authorizing chiropractors to perform an eye-movement test for neurological problems known as VONT, holding that the challenged rules do not exceed the statutory scope of the chiropractic practice.The Texas Chiropractic Act defines the practice of chiropractic to include evaluating the musculoskeletal system and improving the subluxation complex. In 2006, the Board adopted a rule defining both terms as involving nerves in addition to muscles and bones. In 2010, the Board adopted a rule authorizing chiropractors to perform vestibular-ocular-nystagmus testing, or VONT. The Texas Medical Association (TMA) challenged the rules in court. The court of appeals concluded that the rules exceeded the scope of practice prescribed in the Act. The Supreme Court reversed, holding that the challenged provisions are valid. View "Texas Board of Chiropractic Examiners v. Texas Medical Ass'n" on Justia Law

by
The Supreme Court affirmed the order of the district court granting Defendant summary judgment and dismissing Plaintiff's legal malpractice claim, holding that collateral estoppel and in pari delicto barred Plaintiff's legal malpractice claim.In 2018, the district court revoked The Mattheis Company's (the Company) liquor license. In 2019, the Company sued Richard Mulligan and Mulligan Law Office, P.C. (collectively, Mulligan), for legal malpractice related to the revocation of its liquor license. The district court granted Mulligan summary judgment based on collateral estoppel. The Supreme Court affirmed, holding that collateral estoppel and in pari delicto barred the Company's legal malpractice claim. View "Mattheis Co. v. Mulligan" on Justia Law

by
The People of the State of California, by and through the Santa Clara County Counsel, the Orange County District Attorney, the Los Angeles County Counsel, and the Oakland City Attorney, filed suit against various pharmaceutical companies involved in the manufacture, marketing, distribution, and sale of prescription opioid medications. The People alleged the defendants made false and misleading statements as part of a deceptive marketing scheme designed to minimize the risks of opioid medications and inflate their benefits. The People alleged this scheme caused a public health crisis in California by dramatically increasing opioid prescriptions, opioid use, opioid abuse, and opioid-related deaths. In their suit, the People allege causes of action for violations of the False Advertising Law, and the public nuisance statutes. After several years of litigation, the defendants served business record subpoenas on four nonparty state agencies: the California State Board of Registered Nursing (Nursing Board), the California State Board of Pharmacy (Pharmacy Board), the Medical Board of California (Medical Board), and the California Department of Justice (DOJ). The Pharmacy Board, the Medical Board, and the DOJ served objections to the subpoenas. The Nursing Board filed a motion for a protective order seeking relief from the production obligations of its subpoena. After further litigation, which is recounted below, the trial court ordered the state agencies to produce documents in response to the subpoenas. In consolidated proceedings, the state agencies challenged the trial court's orders compelling production of documents. After review, the Court of Appeal concluded the motions to compel against the Pharmacy Board and Medical Board were untimely, and the defendants were required to serve consumer notices on at least the doctors, nurses, pharmacists, and other health care professionals whose identities would be disclosed in the administrative records, investigatory files, and coroner’s reports. Furthermore, the Court concluded the requests for complete administrative records and investigatory files, were overbroad and not reasonably calculated to lead to the discovery of admissible evidence. "The requests for complete administrative records and investigatory files also ran afoul of the constitutional right to privacy and the statutory official information and deliberative process privileges." The trial court was directed to vacate its orders compelling production of documents, and to enter new orders denying the motions to compel and, for the Nursing Board, granting its motion for a protective order. View "Board of Registered Nursing v. Super. Ct." on Justia Law

by
Janet Heath appealed a district court order and judgment that granted Angela Palmer and Taylor Real Estate’s motion for summary judgment and dismissing her claims for negligence and breach of contract. The events that brought about this case began in the fall of 2017 when Heath began looking to buy a house in Bingham County, Idaho. Heath and Palmer communicated back and forth via emails and text messages, arranging financing through a lender, and discussing property listings. They met to view several listings together, including a property owned by Donald and Shirley Ciccone. With Palmer's help, Heath made a written offer on the Ciccione property. The offer, titled "RE-21 Real Estate Purchase and Sale Agreement," indicated Palmer and Taylor Real Estate were acting as “nonagents” for Heath. Heath also signed an Agency Disclosure Brochure indicating that she was a “customer” of Palmer and Taylor Real Estate. The offer form further stated that Heath would remain a “customer” unless she entered into a written representation agreement. Heath and Palmer never signed such an agreement. The Ciccones made a counter-offer which Heath accepted. The Ciccones gave Palmer a property condition disclosure, which revealed the existence of a shared driveway agreement with a neighboring property owned by Walter and Wilma Wallace. At some point before the closing date, the title company contacted Palmer and informed her that the Driveway Agreement needed to be modified to “run with the land” before it would insure the title. Palmer contacted Mr. Wallace and informed him that Heath was trying to buy the Ciccone property but could not do so without a driveway agreement. The Wallaces and the Ciccones signed a 2018 Driveway Agreement, which was essentially the same as the 1998 Driveway Agreement except that it was “a covenant running with the land” and redefined the shared portion of the driveway. Heath and the Ciccones closed on the property, and the warranty deed and the 2018 Driveway Agreement were recorded with the Bingham County Recorder that afternoon. Heath stated in her declaration that she would not have gone through with the sale if she had known that the driveway easement had been shortened by approximately two-thirds of its original length, effectively cutting off access to the garages on her property and significantly reducing the property’s value. The proceedings in this case began in June 2018 when the Wallaces filed a petition to quiet title against Heath and another individual living in her home. The Wallaces filed their petition after a dispute with Heath regarding the dimensions and use of the shared driveway. Finding that the district court erred in concluding that there was no genuine dispute of material fact regarding whether Palmer and Taylor Real Estate violated the statutory duties owed to Heath as a “customer” under Idaho Code section 54-2086, the Idaho Supreme Court reversed the grant of summary judgment in favor of Palmer and Taylor Real Estate. View "Wallace v. Heath" on Justia Law

by
Dat was born in a Kenyan refugee camp in 1993. Admitted to the U.S. around 1994, he became a lawful permanent resident. Dat pled guilty to robbery, 18 U.S.C. 1951, and was sentenced to 78 months' imprisonment. Dat’s robbery conviction is a deportable offense, 8 U.S.C. 1227(a)(2)(A)(iii). Dat moved to vacate his guilty plea, claiming that his attorney, Allen, assured him that his immigration status would not be affected by his plea. Allen testified that she repeatedly told Dat the charges were “deportable offenses,” that she never told him, his mother, or his fiancée that he would not be deported. that she encouraged Dat to hire an immigration attorney, and that they reviewed the Plea Petition, which says that non-citizens would be permanently removed from the U.S. if found guilty of most felony offenses. The Plea Agreement refers to immigration consequences. Dat and Allen also reviewed the PSR, which stated that immigration proceedings would commence after his release from custody.The Eighth Circuit affirmed the denial of relief, finding that Dat was not denied effective assistance of counsel. It was objectively reasonable for Allen to tell Dat that he “could” face immigration ramifications that “could” result in deportation. An alien with a deportable conviction may still seek “relief from removal. These “immigration law complexities” should caution any defense attorney not to advise a defendant considering a guilty plea that the result of a post-conviction, contested removal proceeding is certain. View "Dat v. United States" on Justia Law