Justia Professional Malpractice & Ethics Opinion Summaries

Pro se plaintiff Gary Wisner, M.D. filed a complaint alleging that defendants Dignity Health and the Dignity Health St. Joseph’s Medical Center (collectively, SJMC) falsely reported to the National Practitioner Data Bank (NPDB) that Wisner surrendered his clinical privileges while under criminal investigation for insurance fraud. The trial court granted a special motion to strike the complaint after concluding that Wisner’s claims arose from a protected activity and that Wisner failed to establish a probability of prevailing on the merits. Wisner contested both aspects of the trial court’s order, and he also argued the court erred by denying his motion to conduct limited discovery prior to the hearing on the anti-SLAPP motion. Finding no error, the Court of Appeal affirmed. View "Wisner v. Dignity Health" on Justia Law

Kimberlyn Seals and her counsels of record, Felecia Perkins, Jessica Ayers, and Derek D. Hopson, Sr., appealed a chancery court's: (1) Contempt Order entered on April 8, 2020; (2) the Temporary Order entered on April 28, 2020; (3) the Jurisdictional Final Judgment entered on June 16, 2020; (4) the Final Judgment on Motion for Findings of Fact and Conclusions of Law entered on June 18, 2020; and (5) the Amended Final Judgment entered on June 18, 2020. Seals argued the chancellor lacked jurisdiction and erroneously found them to be in contempt of court. These orders arose out of a paternity suit filed by the father of Seals' child, born 2017. A hearing was set for April 7, 2020, but Seals sought a continuance. The motion was deemed untimely, and that the court expected Seals and her counsel to appear at the April 7 hearing. When Seals and her counsel failed to appear, the court entered the contempt orders at issue before the Mississippi Supreme Court. The Supreme Court: (1) affirmed the chancellor’s finding that Perkins and Ayers were in direct criminal contempt for their failure to appear at a scheduled April 7 hearing; (2) vacated the $3,000 sanction because it exceeded the penalties prescribed by statute; (3) affirmed the award of attorneys’ fees to opposing counsel; (4) found the chancellor erred in finding Hopson to be in direct criminal contempt for failing to appear - "Constructive criminal contempt charges require procedural safeguards of notice and a hearing;" and (5) found the chancellor erroneously found the attorneys to be in direct criminal contempt for violation of the September 2019 Temporary Order. "If proved, such acts are civil contempt." The matter was remanded for a determination of whether an indirect civil contempt proceeding should be commenced. View "Seals, et al. v. Stanton" on Justia Law

The California Commission on Teacher Credentialing (Commission) and the Committee of Credentials of the Commission on Teacher Credentialing (Committee) appealed a judgment and peremptory writ of prohibition directing them to discontinue certain investigative proceedings against present and former public school administrators Kathy Little, Simone Kovats, and Debra Sather (together, the administrators). The Committee commenced an initial review of the administrators’ fitness to continue as credential holders in 2019. Nonparty John Villani was a special education teacher employed by the District between 2011 and 2014. Villani sued the District in 2016 alleging the District unlawfully retaliated against him after he reported that a teacher-aide, David Yoder, was “grooming” and paying inappropriate attention to some of the minor students in his care. Yoder was subsequently charged and convicted of several felony sex offenses against minors, including an offense against one of the aforementioned students. As relevant here, Villani’s lawsuit also alleged the administrators ignored his concerns about Yoder. The Commission learned about Villani’s lawsuit from a news article; the Commission thereafter launched its investigation. The administrators objected to the manner in which the Commission had obtained documents and information from Villani and argued the Committee had not established jurisdiction to review their credentials. The administrators demanded the Commission cease the investigation and the Committee drop the scheduled meetings. The Commission and Committee argued the trial court erred in ruling the administrators were excused from exhausting administrative remedies and misinterpreted Education Code section 44242.5, which defined the scope of the Committee’s jurisdiction. Finding no error, the Court of Appeal affirmed the judgment and writ. View "Little v. Com. on Teacher Credentialing" on Justia Law

Crane filed a complaint for retaliatory discharge, alleging that his employment with Midwest was terminated after he reported numerous health and safety violations to the Illinois Environmental Protection Agency. Crane was awarded $160,000 in compensatory damages and $625,000 in punitive damages. The appellate court affirmed. After losing the underlying action and paying damages to its former employee, Midwest filed a legal malpractice complaint against its attorneys and the Sandberg law firm, alleging that the attorneys failed to list all witnesses intended to be called at trial in compliance with Illinois Supreme Court Rule 213(f), resulting in six defense witnesses being barred from testifying, and several other errors.The circuit court denied the defendants’ motion to dismiss but certified a question for immediate appeal: Does Illinois’ public policy on punitive damages and/or the statutory prohibition on punitive damages [in legal malpractice actions, 735 ILCS 5/2-1115] bar recovery of incurred punitive damages in a legal malpractice case where the client alleges that, but for the attorney's negligence in the underlying case, the jury in the underlying case would have returned a verdict awarding either no punitive damages or punitive damages in a lesser sum?” The appellate court and Illinois Supreme Court answered the question in the negative and affirmed the judgment. View "Midwest Sanitary Service, Inc. v. Sandberg, Phoenix & Von Gontard, P.C." on Justia Law

On November 4, 2016, Kernan had an External Cephalic Version (ECV) procedure to rotate her healthy 39-week fetus from a breech position. The hospital recorded the ECV as successful. Post-procedure fetal monitoring was “reassuring.” The next day, Kernan could not detect fetal movement and returned to the hospital. After an ultrasound, doctors informed Kernan that she had suffered an intrauterine fetal demise and that they could not determine the cause of death. They noted that nothing in the literature linked ECV with fetal demise. Kernan delivered a stillborn baby on November 7. The delivery doctor, Vargas, told Kernan that he could not see any indicators as to why Kernan’s baby died. Kernan eventually ordered an autopsy. After months of delay due to Dr. Vargas not responding to Kernan’s requests to review the autopsy report with her, Kernan met with Dr. Kerns on July 10, 2017, and learned that doctors had discussed her case during a morbidity and mortality conference. Kernan claims she first became subjectively suspicious of medical negligence during that meeting. On November 6, 2017, Kernan served notice of her intention to file suit. Within 90 days, she filed her negligence complaint.The court rejected the suit as time-barred under Code of Civil Procedure 340.5’s one-year limitations period. The court of appeal reversed. The hospital’s records demonstrate that reasonable minds could differ as to whether Kernan should have suspected negligent performance of the ECV on November 5, 2016. View "Kernan v. Regents of the University of California" on Justia Law

In 2002, Douglas Coe, Jacqueline Coe, and GFLIRB, LLC (collectively the “Coes”) were involved in the sale of a company in which they held a substantial interest. Their accountants, BDO Seidman, LLP (“BDO”), advised them of a proposed tax strategy in which the Coes could invest in distressed debt from a foreign company in order to offset their tax obligations. In connection with the proposed tax strategy, BDO advised the Coes to obtain a legal opinion from an independent law firm, Proskauer Rose LLP (“Proskauer”). The Coes followed BDO’s advice, obtained a legal opinion from Proskauer, and claimed losses on their tax returns as a result. But in 2005, the Internal Revenue Service (“IRS”) initiated an audit, which ultimately led to a settlement in 2012. After settling with the IRS, the Coes filed suit against Proskauer in December 2015, asserting legal malpractice, breach of fiduciary duty, fraud, negligent misrepresentation, and other claims. After limited discovery on whether the statute of limitation barred the Coes’ claims, the trial court concluded that it did and granted summary judgment in favor of Proskauer, and the Court of Appeals affirmed. The Georgia Supreme Court concluded the Court of Appeals erred in determining that the Coes failed, as a matter of law, to exercise reasonable diligence to discover Proskauer’s allegedly fraudulent acts. Judgment was reversed and the matter remanded to the trial court for further proceedings. View "Coe, et al. v. Proskauer Rose, LLP" on Justia Law

The Idaho Board of Pharmacy (“Board”) filed an administrative complaint against pharmacist Cindy Chambers, alleging that she dispensed a controlled substance without a valid prescription. Chambers prevailed before the Board and it determined that she was entitled to recover her reasonable attorney fees and costs; however, she failed to comply with the 14-day deadline for requesting her award. When she filed a request almost seven months after the deadline had passed, the Board denied her request upon finding that she failed to show good cause for the late filing. Chambers then sought judicial review from the district court, which dismissed her petition. Chambers then appealed to the Idaho Supreme Court, maintaining that both the Board and the district court erred by applying the wrong legal standard. Finding no reversible error, the Idaho Supreme Court affirmed. View "Chambers v. Idaho Board of Pharmacy" on Justia Law

Plaintiff Yesenia Pacheco sought contraception from Neighborcare Health, a federally funded community health center, “to prevent the birth of an unwanted child.” The method Pacheco and her care providers selected was Depo-Provera, “a highly effective” injectable contraceptive medication that “must be administered on a timely basis every eleven to thirteen weeks.” Pacheco received regular Depo-Provera injections from December 2009 until July 2011. On September 30, 2011 for her next scheduled appointment, a medical assistant “mistakenly injected [Pacheco] with a flu vaccine instead.” The medical assistant “failed to confirm why Ms. Pacheco was there, to document consent to the flu vaccine or a change in the orders, or to advise Ms. Pacheco of the side effects of a flu shot and/or the consequences of skipping a Depo-Provera injection.” Neighborcare did not inform Pacheco of its mistake until December 2011, when she sought an appointment for her next Depo-Provera injection. At that time, Neighborcare asked Pacheco to come to the clinic for a pregnancy test, which was positive. Plaintiff S.L.P. was born to Pacheco and plaintiff Luis Lemus, diagnosed with perisylvian polymicrogyria (PMG), a congenital defect resulting in permanent disabilities. In March 2017, Pacheco, Lemus, and S.L.P. filed an amended complaint against the United States pursuant to the Federal Tort Claims Act (FTCA) at the federal district court for the Western District of Washington, seeking damages relating to Pacheco’s pregnancy and S.L.P.’s PMG. The federal district court certified a question of law to the Washington Supreme Court, asking whether a patient who received negligent reproductive health care could recover all damages proximately caused by the provider’s negligence, regardless of the patient’s reason for seeking care. To this, the Supreme Court answered yes: if any Washington health care provider breaches their duty “to follow the accepted standard of care,” then damages proximately caused by the provider’s negligence may be recovered upon the necessary factual findings. Where negligent contraceptive care results in the birth of a child, and that child has a congenital defect, the provider may be liable for damages relating to the child’s condition. Such liability does not require proof that the child was at a known, heightened risk for developing congenital defects or that the patient sought contraception for the specific purpose of preventing the birth of a child with congenital defects. View "Pacheco v. United States" on Justia Law

The HuffingtonPost.com, Inc. ("HuffPost"), petitioned the Alabama Supreme Court for a writ of mandamus to direct a circuit court to vacate its order denying HuffPost's motion for a summary judgment based on the immunity provided in the Communications Decency Act of 1996, 47 U.S.C. § 230, and to enter a summary judgment in its favor pursuant to the immunity provided in 47 U.S.C. § 230. K.G.S. petitioned to adopt Baby Doe; the birth mother contested the adoption. The birth mother contacted Mirah Ruben, a contributor to HuffPost, and shared her version of events leading to her contesting the adoption. HuffPost published two online articles about Baby Doe’s adoption, including the full name of the birth mother, K.G.S. and included images of Baby Doe. After the articles were published, Claudia D’Arcy, a resident of New York, created a Facebook page dedicated to reuniting the birth mother and Baby Doe, which attached the HuffPost articles. The Facebook page also identified the birth mother and K.G.S. by name, and images of Baby Doe. After the creation of the Facebook page, K.G.S. stated she was “inundated with appallingly malicious and persistent cyber-bullying.” K.G.S.’ attorney compelled Facebook to take down the page because it violated Alabama’s Adoption Code. Then K.G.S. sued HuffPost, Mirah Riben, and a number of other defendants alleging that the defendants had made statements relating to the adoption that subjected them to civil liability and had unlawfully disclosed confidential information about the adoption "to create a sensationalized, salacious, and scandal-driven trial in the court of public opinion to pressure K.G.S. into relinquishing her custody of Baby Doe." After review of the circumstances of this case, the Alabama Supreme Court concluded HuffPost demonstrated a clear legal right to mandamus relief, and its petition was granted. View "Ex parte The HuffingtonPost.com" on Justia Law

Wang sued her former attorney Nesse, alleging professional malpractice in his representation of Wang in her marital dissolution action. Following Nesse’s death, his estate moved for summary judgment on the grounds that Wang’s complaint, filed on December 21, 2015, was barred by the one-year statute of limitations, Code of Civil Procedure section 340.6. According to Nesse’s estate, although Wang and Nesse filed a substitution of attorney form on December 30, 2014, Nesse’s representation of Wang had actually ended earlier, on December 3 or December 17 at the latest, when Wang “discharged” Nesse or “consented” to his withdrawal. The trial court agreed and granted the motion. The court of appeal reversed. There is a triable issue of material fact as to whether Nesse continued to represent her on December 21, 2014, so Nesse’s estate failed to establish that the statute of limitations bars her complaint as a matter of law. View "Wang v. Nesse" on Justia Law