Justia Professional Malpractice & Ethics Opinion Summaries

Plaintiff Rodney Davis, a physician assistant, learned to perform liposuction under the guidance of a physician. Davis grew dissatisfied with the physician for whom he worked, so he decided to establish a new practice. To do so, Davis needed a physician to serve as his supervising physician. Davis found Dr. Jerrell Borup, who had been an anesthesiologist for 18 years, but who had not practiced medicine for 12 years. Before meeting Davis, Borup had never performed liposuction or other surgery. Borup agreed to serve as “Medical Director,” although he would never perform a procedure at the new practice. Borup’s role, in practice, consisted of reviewing charts. Davis, who gave himself the title of “Director of Surgery,” would perform all of the liposuction procedures. Davis opened his practice, Pacific Liposculpture, in September 2010. In 2015, the Physician Assistant Board (the Board) filed an accusation accusing Davis of, among other things, the unlicensed practice of medicine, gross negligence, repeated negligent acts, and false and/or misleading advertising. An administrative law judge (ALJ) found the Board’s accusations were established by clear and convincing evidence, and recommended the revocation of Davis’s license. The Board adopted the ALJ’s findings and recommendations. Davis filed a petition for a writ of administrative mandamus seeking, inter alia, a writ compelling the Board to set aside its decision. The trial court denied the petition. On appeal, Davis argued the ALJ erred in finding that he committed the various acts alleged, and that the findings were not supported by substantial evidence. He further claimed that the discipline imposed constituted a manifest abuse of discretion. Finding no reversible error, the Court of Appeal affirmed. View "Davis v. Physician Assistant Board" on Justia Law

D.C. was employed by Applied, 1996-2008, and claimed three industrial injuries: a specific injury to her neck and right upper extremity in 2001, a specific injury to her neck and both upper extremities in 2005, and a cumulative trauma injury to her neck, both upper extremities, and psyche ending on her last day working. D.C. claimed her injuries were due to the constant use of a computer keyboard. In 2006, she developed a pain disorder, anxiety, and depression, which she claimed were compensable consequences of her physical injuries. She later claimed that she was sexually exploited by Dr. Massey, the physician primarily responsible for the treatment of her industrial injuries. D.C. was diagnosed with PTSD. Applied's workers’ compensation carriers disputed liability for her psychiatric injuries.A workers’ compensation judge found that all of D.C.’s injury claims were industrial; awarded D.C. 100 percent permanent disability (PD) based on her PTSD alone; found no apportionment; and concluded that the insurers were jointly and severally liable for that award since Dr. Massey treated all three of her industrial injuries. The Workers’ Compensation Appeals Board generally affirmed.The court of appeal concluded there was substantial evidence of repeated exposure to injury-causing events and new injuries after 2005 that supported the finding of cumulative trauma ending in 2008. D.C. met her burden of proving that her PTSD was a compensable consequence injury that resulted from the treatment for her industrial injuries and that her employment was a contributing cause; as a matter of law, a patient cannot consent to sexual contact with her physician. The court rejected several challenges to the sufficiency of the evidence. The 100 percent PD award must be annulled as based on an incorrect legal theory, the alternative path theory. View "Applied Materials v. Workers' Compensation Appeals Board" on Justia Law

Jensen was charged as a coconspirator in a felony indictment alleging a scheme under which members of the Santa Clara County Sheriff’s Department issued hard-to-obtain concealed firearms permits in exchange for substantial donations to an independent expenditure committee supporting the reelection campaign of Sheriff Smith. Jensen is a sheriff’s department captain identified as the individual within the sheriff’s department who facilitated the conspiracy. Jensen unsuccessfully moved to disqualify the Santa Clara County District Attorney’s Office from prosecuting him, alleging that that office leaked grand jury transcripts to the press days before the transcripts became public which created a conflict of interest requiring disqualification. He also joined in codefendant Schumb’s motion to disqualify the office due to Schumb’s friendship with District Attorney Rosen and Rosen’s chief assistant, Boyarsky.The court of appeal rejected Jensen’s arguments for finding a conflict of interest requiring disqualification: the grand jury transcript leak, Schumb’s relationships with Rosen and Boyarsky, and a dispute between Rosen and Sheriff Smith about access to recordings of county jail inmate phone calls. The trial court could reasonably conclude Jensen did not demonstrate that the district attorney’s office was the source of the leak. Jensen himself does not have a personal relationship with Rosen or Boyarsky. The trial court could reasonably conclude that Jensen did not establish a conflict of interest based on the existence of a dispute between the district attorney and the elected official with supervisory power over Jensen. View "Jensen v. Superior Court" on Justia Law

Schumb was charged as a coconspirator in a felony indictment alleging a quid pro quo scheme in which members of the Santa Clara County Sheriff’s Department issued hard-to-obtain concealed firearms permits in exchange for substantial monetary donations to the reelection campaign of Sheriff Smith. Schumb is an attorney with a history of fundraising for elected officials; he accepted the donations as a treasurer of an independent expenditure committee supporting Sheriff Smith’s reelection. Schumb is a friend of Rosen, the elected Santa Clara County District Attorney, and previously raised funds for Rosen’s campaigns.Schumb unsuccessfully moved to disqualify the Santa Clara County District Attorney’s Office from prosecuting him, arguing that his friendships with Rosen and Rosen’s chief assistant, Boyarsky, created a conflict of interest making it unlikely Schumb would receive a fair trial. Schumb asserted that he intends to call Rosen and Boyarsky as both fact and character witnesses at trial and. despite their personal connections to the case, neither Rosen nor Boyarsky made any effort to create an ethical wall between themselves and the attorneys prosecuting the case. The court of appeal vacated and directed the lower court to enter a new order disqualifying the Santa Clara County District Attorney’s Office in Schumb's prosecution. View "Schumb v. Superior Court" on Justia Law

Plaintiff and his medical corporation appeal from the trial court's order of his motion for a preliminary injunction against CVS. In June 2020, CVS stopped filling plaintiff's prescriptions for controlled substances for his patients, citing concerns about his prescribing patterns. The trial court denied the injunction on several grounds, including the conclusion that plaintiff should have first sought relief from the California State Board of Pharmacy (Board).The Court of Appeal affirmed the trial court's conclusion, which was based on the doctrine of exhaustion of administrative remedies, on the alternative, but closely related ground under the doctrine of primary jurisdiction. In this case, the Board has primary jurisdiction to consider the particular statutory obligations underlying plaintiff's injunction motion. The court concluded that the trial court correctly recognized that an order requiring CVS to honor particular prescriptions would involve judgments concerning the statutory obligations of pharmacists that the Board is both expected and equipped to resolve. Furthermore, the Board is also empowered to issue an abatement order, if warranted, that would perform the equivalent role of an injunction in providing the relief that plaintiff seeks. Accordingly, the trial court reasonably ruled that plaintiff should first seek relief from the Board before pursuing his claims in court. View "Bradley v. CVS Pharmacy, Inc." on Justia Law

Appellant Sekayi White was an incarcerated and self-represented plaintiff who filed suit after his criminal defense lawyer, respondent Michael Molfetta, failed to respond to repeated requests for his case file. Having exhausted all avenues of direct state appeal of his conviction, White wanted to use the file to help him prepare petitions for collateral habeas relief. Molfetta received White’s letters, but believed he was prohibited from producing the file because it included protected materials. Instead of explaining the problem directly to his former client and producing the unprotected parts of the file, Molfetta effectively ignored the letters. Molfetta produced the file, minus protected materials, only after being ordered to do so by the trial judge in the underlying litigation here. By the time of the production, White’s deadline to file a federal petition for writ of habeas corpus had expired; his petition in the state court was also denied. White sued to recoup the money he spent reconstructing the file, later asking for emotional distress damages. He got neither. The Court of Appeal affirmed the trial court’s judgment in Molfetta’s favor, “but we publish in the hope the embarrassment we feel about the case can lead to improvement. … absent a miscarriage of justice (of which we have no evidence here) our moral and professional assessments, however deeply felt, cannot create a cause of action in tort. As explained herein, we must agree with the trial court: White failed to adequately plead and prove injury from Molfetta’s wrongful behavior.” View "White v. Molfetta" on Justia Law

Plaintiff Michael O’Shea hired attorney Susan Lindenberg to represent him in a child support action. After O’Shea’s ex-wife was awarded what he believed to be an excessive amount of child support, he filed this action, alleging Lindenberg should have retained a forensic accountant. The case went to trial and the jury concluded, in a special verdict, that Lindenberg owed a professional duty of care that she breached. The jury was unable to agree, however, on whether the breach of duty caused him damage, and the judge declared a mistrial. Lindenberg moved for a directed verdict on the grounds that the evidence presented at trial did not support a finding of causation, specifically, that without the alleged malpractice, O’Shea would have received a better result. The trial court agreed and directed a verdict in Lindenberg’s favor. After review, the Court of Appeal found O’Shea failed to present sufficient testimony on the issue of causation, and therefore affirmed the directed verdict. View "O'Shea v. Lindenberg" on Justia Law

In 2014, ALADS filed suit against defendants for breaches of their fiduciary duty to ALADS as members of its board of directors. ALADS obtained a temporary restraining order requiring the return of $100,000, and several weeks later a preliminary injunction preventing Defendant Macias from claiming to be a director. In 2018, the trial court entered judgment for ALADS, awarding damages sustained by ALADS and a permanent injunction, but found ALADS did not have standing to recover monetary compensation for its members. Afterwards, ALADs sought cost-of-proof sanctions, which the trial court denied. Both parties appealed.The Court of Appeal concluded that the trial court did not err in its conclusion that defendants breached their fiduciary duties to ALADS, or in its award of damages for harm to ALADS (except in one very minor respect), or in its award of a permanent injunction. However, the trial court did err when it concluded that ALADS did not have standing to seek the $7.8 million in damages on behalf of its members. The court explained that ALADS proved those damages without objection from defendants and had standing to do so. The court further concluded that ALADS was entitled to cost-of-proof sanctions. Accordingly, the court amended the judgment to include the $7.8 million in damages to ALADS's members, affirmed the judgment as amended, and remanded for the trial court to determine the appropriate amount of cost-of-proof sanctions. View "Association for Los Angeles Deputy Sheriffs v. Macias" on Justia Law

Appellants, Jillian Michaels and Empowered Media, filed suit against respondents, a law firm and its shareholder partner, for nine causes of action, including legal malpractice. The legal malpractice claim involved negotiating a branding contract with a diet supplement company called ThinCare. The trial court granted respondents' motions for summary judgment on six of the nine causes of action. Appellants subsequently moved to dismiss the remaining causes of action, which the trial court granted.The Court of Appeal held that the trial court abused its discretion by excluding portions of appellants' expert witness's declaration on damages. In reviewing the evidence, the court concluded that appellants have met their burden of establishing a material factual dispute on causation and their burden of establishing materiality on damages. Furthermore, appellants are not barred from recovery under the doctrine of unclean hands. Finally, the court concluded that there is a statute of limitations question involving materially disputed facts that cannot be resolved by a summary adjudication motion. Therefore, the court reversed the trial court court's grant of summary adjudication on the causes of action for legal malpractice, breach of fiduciary duty, breach of contract, declaratory relief to rescind and void litigation agreement, and negligent misrepresentation. The court remanded for further proceedings. View "Michaels v. Greenberg Traurig, LLP" on Justia Law

Sommer, a psychologist at a mental health clinic on a military base, sexually assaulted three patients under the guise of using “exposure therapy.” A jury convicted Sommer of several felonies, including sexual battery by fraudulent representation (Pen. Code, 243.4(c)). The trial court sentenced him to state prison.The court of appeal affirmed. Sufficient evidence supports the sexual battery by fraud conviction. Confusion is not surprising when a professional unexpectedly touches the sexual parts of the victim’s body during purported professional treatment. Confusion or doubt about the purpose of the touching does not preclude a conviction as long as the jury finds beyond a reasonable doubt that the victim allowed the touching to occur because of the defendant’s fraudulent misrepresentation of a professional purpose. The prosecutor did not misstate the law during his closing argument by saying: “Confusion is unconsciousness.” The court properly instructed the jury with CALCRIM No. 1191B, regarding consideration of charged sex offenses. The court did not err by refusing to release portions of the victims’ sealed mental health records; the undisclosed information “was not material to the defense.” View "People v. Sommer" on Justia Law