Justia Professional Malpractice & Ethics Opinion Summaries

Former sheriff's deputies Henry Lee Copeland, Rhett Scott, and Michael Howell were indicted by grand jury for the felony murder (and other offenses) of Eurie Lee Martin. Each defendant sought immunity from prosecution under OCGA 16-3-24.2, claiming that his actions resulting in Martin’s death were in defense of himself or others. Following a hearing, the trial court issued an order granting immunity to Deputies Copeland, Scott, and Howell, and the State appealed. The Georgia Supreme Court determined that, in granting immunity, the trial court made findings of material fact that were inconsistent with its legal conclusions regarding the deputies’ encounter with Martin, conflated principles regarding the reasonable use of force by law enforcement with self-defense and immunity, made unclear findings of material fact with respect to whether any or all of the deputies used force intended or likely to cause death, and did not address the facts pertinent to each of the three deputies individually. For these reasons, the Supreme Court vacated the trial court’s ruling and remanded the cases for further consideration. View "Georgia v. Copeland et al." on Justia Law

Green, was convicted of two counts of the first-degree murder for the gang-related shooting death of Lewis and was sentenced to 35 years’ imprisonment on one of those convictions. The conviction was affirmed on direct appeal. The trial court rejected a post-conviction petition alleging that Green’s trial counsel, Ritacca, labored under a per se conflict of interest because his trial counsel had previously represented Williams, the intended victim of the murder, who was in the vehicle with Lewis at the time of the shooting. Green neither knew about the conflict nor waived the conflict was rejected.The appellate court and Illinois Supreme Court affirmed, finding no per se conflict of interest. Only three situations establish a per se conflict of interest: where defense counsel has a prior or contemporaneous association with the victim, the prosecution, or an entity assisting the prosecution; where defense counsel contemporaneously represents a prosecution witness; and where defense counsel was a former prosecutor who had been personally involved with the prosecution of the defendant. Ritacca’s representation of both defendant and Williams did not fit within any of those three per se conflict situations. View "People v. Green" on Justia Law

After a bench trial, Xun Wang was convicted of two counts of Medicaid fraud, and one count of unauthorized practice of a health profession. Defendant earned a medical degree in her native China, and earned a Ph.D. in basic medical science in the United States. Notwithstanding her education in the United States and abroad, defendant was never licensed to practice in a health profession in the United States. The Michigan Department of the Attorney General’s Health Care Fraud Division discovered that a high volume of narcotics prescriptions were being written at the clinic for which she worked part time. In 2014, the department conducted an investigation, during which Drew Macon and Lorrie Bates, special agents with the department, separately went to the clinic while posing as patients with Medicaid benefits. Defendant saw both agents when they posed as patients, identified herself as clinic-owner Dr. Murtaza Hussain’s assistant, and took written notes of their medical histories. Defendant also performed physical examinations, answered their questions, and wrote prescriptions for both agents on a prescription pad that Hussain had previously signed, including a prescription for Ambien, a Schedule 4 controlled substance. The patients’ notes were entered into the clinic’s computer system and were electronically signed by Hussain; the notes indicated that both defendant and Hussain had seen the agents. The Medicaid processing system reflected that claims were submitted for both agents’ treatment and were paid to Hussain for a total of $260. The trial court sentenced her to concurrent terms of 365 days in jail for each conviction, which was suspended upon the successful completion of five years’ probation and the payment of $106,454 in fines and costs. The Michigan Supreme Court found after review that while the lower courts did nor err in determining there was sufficient evidence to convict defendant on unauthorized practice of a health profession, the evidence did not establish she was aware or should have been aware that the patients at issue were Medicaid beneficiaries and their treatment was substantially certain to cause the payment of a Medicaid benefit under the applicable statute. Therefore, defendant's convictions of Medicaid fraud were reversed. The matter was remanded back to the trial court for reconsideration of the fines assessed. View "Michigan v. Wang" on Justia Law

The cause of Cory's 2006 death was undetermined. The police later reopened the investigation. A grand jury indicted her husband, Lovelace, an Illinois criminal defense lawyer. Lovelace's first trial resulted in a hung jury. In his 2017 retrial, a jury found him not guilty. In a suit against under 42 U.S.C. 1983, Lovelace claimed that the defendants fabricated evidence, coerced witnesses, and concealed exculpatory evidence. The case was assigned to Judge Myerscough. A year later, the case was reassigned to Judge Bruce. Months later, the plaintiffs successfully moved to disqualify Bruce. The case was reassigned back to Myerscough, who informed counsel about circumstances that might seem relevant to her impartiality, her usual practice. Myerscough's daughter had just been hired as an Exoneration Project attorney. The plaintiffs’ law firm funds the Project and donates the time of its attorneys. The plaintiffs’ attorney stated that she worked with the judge’s daughter at the Project but did not supervise her and was not responsible for her compensation. Screening was implemented. Myerscough had recently attended a fundraiser for Illinois Innocence Project, where her daughter previously worked. The fundraiser recognized “exonerees,” including Lovelace. Defendants unsuccessfully requested that Myerscough disqualify herself under 28 U.S.C. 455(a).The Seventh Circuit denied a mandamus petition. There was no reasonable question as to Myerscough’s impartiality; no “objective, disinterested observer” could “entertain a significant doubt that justice would be done” based on the fundraiser. Section 455(b) requires recusal only if a judge’s close relative is “acting as a lawyer in the proceeding” or is known “to have an interest that could be substantially affected.” Nothing beyond the bare fact of the daughter’s employment poses a risk of bias. View "Gibson v. Myerscough" on Justia Law

The Delaware Board of Medical Licensure and Discipline (the “Board”) reprimanded Dr. Bruce Grossinger, for violating various regulations governing the use of controlled substances for the treatment of pain. Specifically, the Board adopted the detailed report and recommendation of a Division of Professional Regulation hearing officer, who had found that Dr. Grossinger, in his care of a heroin-addicted patient (“Michael”), had not complied with the Board’s rules and regulations. The Board found that Dr. Grossinger failed to, among other things, document Michael’s history of substance abuse, discuss with Michael the risks and benefits of treatment with controlled substances, order urine samples or require pill counts, and keep accurate and complete treatment records. After a hearing, the hearing officer recommended that the Board find Dr. Grossinger guilty of unprofessional conduct and discipline him by placing his medical license on probation for six months and requiring him to complete additional medical education and pay a fine. Board adopted the hearing officer’s findings but reduced Dr. Grossinger’s discipline from probation to a letter of reprimand. Dr. Grossinger appealed the Board’s decision to the Superior Court, which reversed on all but one of the five findings. The Superior Court’s reversal of the Board rested on several legal conclusions, including that some of the regulations that Dr. Grossinger was said to have violated were unconstitutionally vague as applied to him, that expert testimony was required to establish the standard of care under the regulations, and that Dr. Grossinger’s due process rights were violated because the Board relied on evidence - its own expertise - outside the record. The parties cross- appealed: the Board appealed the Superior Court’s reversal of all but one of the findings; and Dr. Bruce Grossinger appealed the Superior Court’s failure to reverse the final finding. The Delaware Supreme Court disagreed with the Superior Court’s reversal of the Board’s decision and, therefore, reversed. View "Delaware Bd. of Med. Licensure & Discipline v. Grossinger" on Justia Law

Sepling, represented by SC, pled guilty to importing GBL, a controlled substance analogue, 21 U.S.C. 952; Sepling’s sentence would be calculated without consideration of the Guidelines career offender section. Sepling was released on bond pending sentencing and became involved in a conspiracy to import methylone, another Schedule I controlled substance. He was charged under 21 U.S.C. 963. A search uncovered three kilograms of methylone. Subsequent investigation revealed that the conspiracy involved approximately 10 kilograms. A Public Defender (APD) represented Sepling on the new charges. The prosecution agreed to withdraw the new charge; in exchange, Sepling’s involvement in the conspiracy would be factored into his GBL sentence as relevant conduct. The APD ceased representing Sepling. Sepling’s unmodified Guideline range for the GBL was 27-33 months. The methylone relevant conduct dramatically increased his base offense level. The PSR analogized methylone to MDMA, commonly called “ecstasy,” and held him responsible for 10 kilograms, resulting in responsibility equivalent to that for conspiring to distribute five and a half tons of marijuana, for a sentencing range of 188-235 months. SC did not object to that calculation, nor did he file a sentencing memorandum. Rather than researching the pharmacological effect of methylone, SC relied upon Sepling to explain the effects of methylone. SC, the government, and the court all confessed that they did not possess any substantive knowledge of methylone The Third Circuit vacated the 102-month sentence. Sepling was prejudiced by his counsel’s ineffectiveness. View "United States v. Sepling" on Justia Law

This case was companion to Colorado Medical Board v. McLaughlin, 2019 CO 93, __ P.3d __, wherein the Colorado Supreme Court was asked to determine whether an investigative subpoena issued by the Colorado Medical Board (the “Board”) could have a lawfully authorized purpose if the investigation was prompted by a complaint made by the Colorado Department of Public Health and Environment (the “CDPHE”) pursuant to a policy that violated the Open Meetings Law (the “OML”) or the State Administrative Procedure Act (the “APA”). Petitioner James Boland, M.D. was a physician licensed to practice medicine in Colorado. He primarily examined patients to determine if they would benefit from the use of medical marijuana. Information related to medical marijuana in Colorado is maintained by the CDPHE in a confidential registry that includes the names of all patients who have applied for and are entitled to receive a marijuana registry identification card, as well as the names and contact information for the patients’ physicians and, if applicable, their primary caregivers. In June 2014, the CDPHE referred Boland to the Board for investigation based on his “[h]igh plant count recommendations and high percent of patients under age of 30 [sic] for medical marijuana referrals.” Boland refused to comply with the subpoena, and he and several other physicians whom the CDPHE had referred to the Board and who had received subpoenas from the Board filed suit in the Denver District Court, seeking, among other things, to enjoin the Board from enforcing its subpoenas. The Supreme Court concluded that because neither the CDPHE’s adoption of the Referral Policy nor its referral of Boland to the Board violated the OML or the APA, Boland’s contention that the subpoena to him was void because the Policy and referral were void was based on a flawed premise and was therefore unpersuasive. Even if the adoption of the Referral Policy and the referral itself violated the OML or the APA, however, we still conclude that the Board’s subpoena to Boland had a lawfully authorized purpose because it was issued pursuant to the Board’s statutory authority to investigate allegations of unprofessional conduct and was properly tailored to that purpose. View "Boland v. Colorado Medical Board" on Justia Law

In this medical negligence action, the Supreme Court affirmed the judgment of the trial court rendered in accordance with the court's granting of Defendants' motions to dismiss and for summary judgment, holding that the Court could not reach the merits of Plaintiff's claim that Conn. Gen. Stat. 52-190a is unconstitutional.Plaintiff brought this case against the State and numerous superior court judges, a psychiatrist and his employer, and business entities after his wife committed suicide. The trial court granted judgment for Defendants. On appeal, Plaintiff argued that section 52-190a, which requires a plaintiff to append a good faith certificate and supporting opinion letter to the complaint in cases of medical negligence, is unconstitutional. The Supreme Court affirmed, holding that because Plaintiff failed to challenge the trial court's threshold conclusions that his claims against Defendants were barred by, among other things, the doctrines of res judicata and collateral estoppel, this Court could not address the single substantive issue that Plaintiff raised and that the judgment of the trial court must be affirmed. View "Traylor v. State" on Justia Law

Terence Bruce and Stanley Nicholson were convicted by juries of common-law misconduct in office. Defendants were federal border patrol agents assigned to a Hometown Security Team (HST) task force that included Michigan State Police troopers, border patrol agents, and other officers operating in Jackson County, Michigan. Defendants had been assigned to ensure perimeter security around a home during the execution of a search warrant and to help search the home and remove confiscated evidence. The task force kept a tabulation of items seized, but defendants took additional property not included on the tabulation. Defendant Nicholson took an antique thermometer and barometer device, insisting that it was junk, and he accidentally ruined the device when he took it home to clean it. Defendant Bruce took a wheeled stool with a leather seat home with him, but he returned it to the police department when asked about it. Defendants were charged with common-law misconduct in office as well as larceny in a building. Defendants moved for directed verdicts, arguing that they were not public officers for purposes of the misconduct-in-office offense. The court denied the motions, and the jury convicted defendants of misconduct in office but acquitted them of larceny in a building. Defendants appealed. In an unpublished per curiam opinion, the Court of Appeals, held that defendants were not public officers and vacated the convictions. The State appealed. The Michigan Supreme Court held that whether defendants were public officers depended on the duties they exercised and the color of office under which they acted. In these cases, because defendants exercised duties of enforcement of Michigan law and acted under authority granted to them by Michigan statute, they acted as public officers. Accordingly, the Supreme Court reversed the Court of Appeals and remanded to that Court for consideration of defendants’ remaining issues. View "Michigan v. Bruce" on Justia Law

Appellant Stephan Palmer, Sr. appealed the grant of summary judgment in favor of appellee, Attorney Mark Furlan. While incarcerated, appellant filed a petition for postconviction relief (PCR). Attorney Furlan, an ad hoc public defender, was assigned to represent appellant in the PCR proceedings. The petition was litigated until the parties agreed to settle, arriving at a proposed stipulation to modify appellant’s sentence. December 23, 2015 the PCR court granted the parties’ stipulation motion. The entry order was immediately emailed to the criminal division; the criminal division issued an amended mittimus to the Commissioner of Corrections the same day; and the following day, the Department of Corrections received the amended mittimus and recalculated appellant’s sentence in accord with the PCR court’s order amending the sentence. Appellant was released from incarceration on December 24. Appellant then filed a civil action against Attorney Furlan, alleging legal malpractice. Not knowing that immediate release was at stake, the PCR court took more time than it would have otherwise in scheduling a hearing and approving the stipulation. Appellant characterized the length of incarceration between when he posited he would have been released if Attorney Furlan had more aggressively attempted to get the PCR court to act in an expedited manner and when he was actually released as wrongful and the basis for his damages. In affirming summary judgment, the Vermont Supreme Court concluded "The proof provided here, or rather the lack thereof, leaves all reasonable minds to speculate as to whether or not the PCR court would have: not scheduled a hearing on the motion; scheduled a hearing on the motion sooner than it did; issued an order on the motion in a shorter period of time after the hearing; come to the same conclusions and granted the stipulation motion; or behaved in any of the seemingly endless alternative manners a reasonable person could posit. Appellant’s argument simply leaves too much to speculation, which is something this Court and trial courts will not do when examining a motion for summary judgment." View "Palmer v. Furlan" on Justia Law