Justia Professional Malpractice & Ethics Opinion Summaries

In 1988, Department of Professional Regulation investigator visited Gekas, a Springfield, Illinois dentist, and expressed concern that Gekas had administered nitrous oxide to a child. He ordered Gekas to provide information on all prescriptions on a continuing basis. Gekas contacted Deputy Governor Riley for assistance. After a meeting, the Department imposed less onerous requirements. In 2002, a Department investigator raided Gekas’ offices, with the assistance of the Federal Drug Enforcement Agency. After failed negotiations, the Department issued a cease and desist order against Gekas for the unlicensed practice of medicine and prescribing controlled substances while not a licensed physician and sought to have his license suspended, on grounds that Gekas had prescribed 4,600 doses of Hydrocodone and Vicoprofen to a patient. Gekas contacted his Senator. In 2008, the cease-and-desist was vacated and the complaint dismissed. Gekas submitted a FOIA request concerning the administrative complaint. The Department responded that no public documents were available. In 2009, Gekas filed suit; it was dismissed by stipulation in 2010. Meanwhile, a Chairman on the Illinois Board of Dentistry issued subpoenas against Gekas, stating that there was reasonable cause to believe that Gekas had violated the Illinois Dental Practice Act. Gekas filed suit, alleging First Amendment retaliation. The district court granted defendants summary judgment, finding no evidence of retaliatory motive. The Seventh Circuit affirmed. View "Gekas v. Vasiliades" on Justia Law

Kulbicki shot his girlfriend during the weekend before a scheduled hearing about unpaid child support. At Kulbicki’s 1995 trial, an FBI Agent expert on Comparative Bullet Lead Analysis (CBLA) testified that the composition of elements in the molten lead of a bullet fragment found in Kulbicki’s truck matched the composition in a fragment removed from the victim’s brain; a similarity one would “‘expect’” if “‘examining two pieces of the same bullet,’” and that a bullet taken from Kulbicki’s gun was not an “exac[t]” match to those fragments, but was similar enough that the two bullets likely came from the same package. The jury considered additional physical evidence from Kulbicki’s truck and witness testimony and convicted Kulbicki of first-degree murder. Kulbicki sought post-conviction relief. In 2006 Kulbicki added a claim that his attorneys were ineffective for failing to question the legitimacy of CBLA. By then, the Court of Appeals of Maryland had held that CBLA evidence was not generally accepted by the scientific community and was inadmissible. In that court, Kulbicki abandoned his claim of ineffective assistance with respect to the CBLA evidence, but the court vacated Kulbicki’s conviction on that ground alone. The Supreme Court summarily reversed, stating that the lower court indulged in the “natural tendency to speculate as to whether a different trial strategy might have been more successful.” Given the uncontroversial nature of CBLA at the time of trial, the judgment below would demand that lawyers go “looking for a needle in a haystack,” even when they have “reason to doubt there is any needle there.” View "Maryland v. Kulbicki" on Justia Law

In 1999, Christeson was convicted of three counts of capital murder and sentenced to death. The Missouri Supreme Court affirmed Christeson’s conviction and sentence and denial of his post-conviction motion for relief. Under the one-year limitations period imposed by the Antiterrorism and Effective Death Penalty Act, 28 U. S. C. 244(d)(1), Christeson’s federal habeas petition was due on April 10, 2005. Nine months before that deadline, the court appointed attorneys Horwitz and Butts to represent Christeson, 18 U. S. C. 599(a)(2). The attorneys subsequently acknowledged that they failed to meet with Christeson until six weeks after his petition was due. There is no evidence that they communicated with him at all. They finally filed the petition 117 days late. The district court dismissed; the Eighth Circuit denied a certificate of appealability. Christeson, who has severe cognitive disabilities, relied entirely on his attorneys, and may not have known of the dismissal. About seven years later, the attorneys contacted attorneys Merrigan and Perkovich to discuss Christeson’s case. Christeson’s only hope for merits review was to move under FRCP60(b) to reopen final judgment on the ground that AEDPA’s statute of limitations should have been equitably tolled. Horwitz and Butts would not file that motion, premised on their own malfeasance. In 2014, Merrigan and Perkovich unsuccessfully moved to substitute counsel. The Eighth Circuit dismissed, reasoning that they were not authorized to file on Christeson’s behalf. The Missouri Supreme Court set an October 29, 2014 execution date. The district court denied a second motion as untimely, stating that Horwitz and Butts had not “abandoned” Christeson, and reasoning that allowing the motion would permit “‘abusive’” delays in capital cases. The Eighth Circuit affirmed. The Supreme Court stayed execution and reversed, stating that the denials contravened its 2012 decision, Martel v. Clair, concerning the “interests of justice” standard, and noting the obvious conflict of interest with respect to the original attorneys. View "Christeson v. Roper" on Justia Law

The Illinois Department of Financial and Professional Regulation (Department) permanently revoked the health care licenses of physicians (plaintiffs) pursuant to the Department of Professional Regulation Law (20 ILCS 2105/2105-165) as a result of plaintiffs’ prior misdemeanor convictions for battery and criminal sexual abuse of their patients. The circuit court of Cook County dismissed their challenges. The appellate court and the Illinois Supreme Court affirmed, rejecting claims that the Act: did not apply to individuals who were convicted of a triggering offense prior to the Act’s effective date; was impermissibly retroactive and impaired certain fundamental rights, in violation of substantive due process; violated procedural due process; was unenforceable based on the res judicata effect of the previous discipline imposed by the Department; violated federal and state constitutional protections against double jeopardy; violated the constitutional prohibition against bills of attainder; violated the federal takings clause; and violated federal and state constitutional prohibitions against ex post facto law. View "Hayashi v. IL Dep't of Fin. & Prof'l Regulation" on Justia Law

Inmate Santiago, complaining of severe pain and a rash, was seen by Dr.Mosher on January 31. Mosher prescribed Tylenol for pain and antibiotics to treat what she thought might be Methicillin-resistant Staphylococcus aureus (MRSA). The next day Dr. Ringle diagnosed erythema nodosum (EN), an uncomfortable but non-dangerous skin inflammation that typically disappears in about six weeks but may recur. EN has no known cure. Ringle prescribed an anti-inflammatory and an antibiotic. Four days later, Santiago was transferred to OSU Medical Center, where he was diagnosed with EN and arthralgias, a severe joint-pain condition, and prescribed an anti-ulcer agent and a different anti-inflammatory. Santiago was seen on February 20 by an OSU dermatologist, who recommended a topical steroid, compression hose, and SSKI, which may help treat EN but is not standard treatment. Each day, February 22- 25, Santiago asked prison nursing staff about the treatments. Staff denied knowledge until, on the 25th, nurses found Santiago’s unsigned chart on Ringle’s desk. Ringle had been on vacation. Mosher signed the order on February 27. Santiago received the topical steroid on February 29 and compression stockings on March 10. Santiago waited longer for the SSKI, which is a non-formulary drug. The district court rejected Santiago’s suit (42 U.S.C. 1983) based on the delays. The Sixth Circuit affirmed. Santiago did not prove that the delay caused a serious medical need or deliberate indifference.View "Santiago v. Ringle" on Justia Law

Steidl and Whitlock were convicted of 1987 murders, largely based on testimony by two supposed eyewitnesses. Long after the convictions, an investigation revealed that much of the testimony was perjured and that exculpatory evidence had been withheld. The revelations led to the release of the men and dismissal of all charges. Steidl had spent almost 17 years in prison; Whitlock had spent close to 21 years. They sued. By 2013, both had settled with all defendants. Because the defendants were public officials and public entities, disputes arose over responsibility for defense costs. National Casualty sought a declaratory judgment that it was not liable for the defense of former State’s Attorney, McFatridge, or Edgar County, agreeing to pay their costs under a reservation of rights until the issue was resolved. The Seventh Circuit ruled in favor of National Casualty. In another case McFatridge sought a state court order that the Illinois Attorney General approve his reasonable expenses and fees; the Illinois Supreme Court rejected the claim. In a third case, National Casualty sought a declaratory judgment that another insurer was liable for costs it had advanced. The Seventh Circuit affirmed that the other company is liable. It would be inequitable for that company to benefit from National’s attempt to do the right thing, especially since it did not do the right thing and contribute to the defense costs under a reservation of rights. View "Nat'l Cas. Co. v. White Mountains Reinsurance Co." on Justia Law

In 1985, a manager was shot to death during a robbery of his restaurant. In the following months, a second manager was murdered and another survived similar robberies. In each restaurant, the robber fired two .38 caliber bullets; all six bullets were recovered. The survivor, Smotherman, described his assailant and picked Hinton’s picture out of a photographic array. The police arrested Hinton and recovered from his house a .38 caliber revolver belonging to his mother, who shared the house. The Alabama Department of Forensic Sciences concluded that the six bullets had all been fired from the Hinton revolver. Hinton was charged with two counts of murder. He was not charged with the Smotherman robbery. The prosecution strategy was to link Hinton to the Smotherman robbery by eyewitness testimony and forensic evidence about the bullets and to persuade the jury that, given the similarity of the crimes, Hinton must have committed the murders. Hinton presented witnesses in support of his alibi that he was at work at the time of the Smotherman robbery. The six bullets and the revolver were the only physical evidence. Hinton’s attorney obtained a grant of $1,000 to hire an expert to challenge that evidence and did not request more funding, nor correct the judge’s mistaken belief that a $1,000 limit applied. Under that mistaken belief, Hinton’s attorney found only one person who was willing to testify: Payne. Hinton’s attorney believed that Payne did not have the necessary expertise. The prosecutor discredited Payne. The jury convicted Hinton; the court imposed a death sentence. In state post-conviction proceedings, Hinton alleged ineffective assistance and produced three highly credible experts, who testified that they could not conclude that any of the bullets had been fired from the Hinton revolver. The state did not submit rebuttal evidence. Following a remand by the state’s highest court, the trial court held that Payne was qualified to testify as a firearms and toolmark expert under the then-applicable standard. The Alabama Supreme Court denied review. The U.S. Supreme Court vacated and remanded, holding that Hinton’s attorney rendered ineffective assistance under its “Strickland” test. It was unreasonable to fail to seek additional funds to hire an expert where that failure was based not on any strategic choice but on a mistaken belief that available funding was limited. View "Hinton v. Alabama" on Justia Law

In 1985, a manager was shot to death during a robbery of his restaurant. In the following months, a second manager was murdered and another survived similar robberies. In each restaurant, the robber fired two .38 caliber bullets; all six bullets were recovered. The survivor, Smotherman, described his assailant and picked Hinton’s picture out of a photographic array. The police arrested Hinton and recovered from his house a .38 caliber revolver belonging to his mother, who shared the house. The Alabama Department of Forensic Sciences concluded that the six bullets had all been fired from the Hinton revolver. Hinton was charged with two counts of murder. He was not charged with the Smotherman robbery. The prosecution strategy was to link Hinton to the Smotherman robbery by eyewitness testimony and forensic evidence about the bullets and to persuade the jury that, given the similarity of the crimes, Hinton must have committed the murders. Hinton presented witnesses in support of his alibi that he was at work at the time of the Smotherman robbery. The six bullets and the revolver were the only physical evidence. Hinton’s attorney obtained a grant of $1,000 to hire an expert to challenge that evidence and did not request more funding, nor correct the judge’s mistaken belief that a $1,000 limit applied. Under that mistaken belief, Hinton’s attorney found only one person who was willing to testify: Payne. Hinton’s attorney believed that Payne did not have the necessary expertise. The prosecutor discredited Payne. The jury convicted Hinton; the court imposed a death sentence. In state post-conviction proceedings, Hinton alleged ineffective assistance and produced three highly credible experts, who testified that they could not conclude that any of the bullets had been fired from the Hinton revolver. The state did not submit rebuttal evidence. Following a remand by the state’s highest court, the trial court held that Payne was qualified to testify as a firearms and toolmark expert under the then-applicable standard. The Alabama Supreme Court denied review. The U.S. Supreme Court vacated and remanded, holding that Hinton’s attorney rendered ineffective assistance under its “Strickland” test. It was unreasonable to fail to seek additional funds to hire an expert where that failure was based not on any strategic choice but on a mistaken belief that available funding was limited. View "Hinton v. Alabama" on Justia Law

Plaintiffs sought to enjoin enforcement of Senate Bill 1172, which banned state-licensed mental health providers from engaging in "sexual orientation change efforts" ("SOCE") with patients under 18 years of age, because it violated the First Amendment and infringed on several other constitutional rights. Undertaking plenary review, the court held that SB 1172 was a regulation of professional conduct and, therefore, did not violate the free speech rights of SOCE practitioners or minor patients under rational basis review. The court also held that the statute was neither vague nor overbroad and did not violate parents' fundamental rights. Accordingly, the court reversed the order granting preliminary relief in Case No. 13-15023 and affirmed the denial of preliminary relief in Case No. 12-17681. View "Pickup, et al. v. Brown, Jr., et al." on Justia Law

Carpenter sued Flint, a councilwoman and the mayor, based on Carpenter’s termination from his position as Director of Transportation, asserting age and political discrimination, breach of contract, wrongful discharge, gross negligence, defamation, and invasion of privacy. Defendants argued that the complaint failed to identify which claims were alleged against which defendants, and that the allegations were “excessively esoteric, compound and argumentative.” Carpenter did not respond by the court’s deadline, and about five weeks later, a stipulated order entered, permitting Carpenter to file an amended complaint by April 21, 2011. Counsel manually filed an amended complaint on May 20, 2011, violating a local rule requiring electronic filing. The clerk accepted the filing, but issued a warning. Carpenter failed to timely respond to a renewed motion to strike. Carpenter responded to a resulting show-cause order, but failed to abide by local rules. Another warning issued. Carpenter’s response to a second show-cause order was noncompliant. The court warned that “future failure to comply … will not be tolerated.” After more than five months without docket activity, the court dismissed. The Sixth Circuit reversed. Defendants bore some responsibility for delays and the length of delay does not establish the kind of conduct or clear record warranting dismissal; lesser sanctions were appropriate. View "Carpenter v. City of Flint" on Justia Law