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

In a previous decision, the Court of Appeal affirmed a judgment terminating Johneisha Kemper's parental rights to her daughter, rejecting Kemper's contention that she received ineffective assistance of her appointed juvenile dependency counsel. Kemper then brought a legal malpractice action against the same appointed juvenile dependency attorneys, their supervising attorney, and the County of San Diego.2 She alleged defendants' legal representation breached the applicable standard of care and caused the termination of her parental rights. Defendants moved for summary judgment based on the collateral estoppel doctrine. The court granted the motion and entered judgment in defendants' favor. Kemper appealed, and the Court of Appeal affirmed: "Causation is an essential element of a legal malpractice claim, and Kemper is barred by the collateral estoppel doctrine from relitigating the issue of whether her juvenile dependency attorneys caused the termination of her parental rights. We decline Kemper's request that we create a new exception to the collateral estoppel rule based on an analogy to the writ of habeas corpus procedure applicable in juvenile dependency cases." View "Kemper v. Co. of San Diego" on Justia Law

In January 2003, Christopher Lyas died while receiving treatment at Pine Grove Behavioral Health Center, a subsidiary of Forrest General Hospital. Shortly after Christopher’s death, his widow, Madra Lyas was visited by an employee of the Forrest County Coroner’s Office who provided her a provisional Certificate of Death which listed the immediate cause of death as “pending” and a provisional autopsy report which listed the cause and manner of Christopher’s death as “pending toxicology,” but contained pathological diagnoses of “Hypertensive Heart Disease” and “Morbid Obesity.” The employee informed Madra that Christopher probably had died of a heart attack. Seven years later, after meeting in person with the Forrest County Coroner, Madra was given Christopher’s final Certificate of Death, which professed “[c]hanges consistent with meprobamate and carisoprodol overdose” as the immediate cause of Christopher’s death. She then filed suit against Pine Grove and Forrest General Hospital, alleging that Pine Grove had caused Christopher’s death negligently by means of a prescription drug overdose. The trial court granted summary judgment in favor of Forrest General and Pine Grove, holding that Madra had not filed suit within the one-year statute of limitations pursuant to the Mississippi Tort Claims Act. Madra appealed, arguing that the discovery rule tolled the applicable statute of limitations. Because Madra has produced evidence of her reasonable diligence during the statutory period, the Supreme Court found that a genuine issue of material fact existed on the issue of whether the statute of limitations was tolled. The Court therefore reversed the circuit court’s grant of summary judgment in favor of Forrest General and remand this case for a trial on the merits. View "Lyas v. Forrest General Hospital" 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

Through the adoption of Nev. Rev. Stat. 630.356(2), the Legislature gave physicians the right to contest and the district courts the power to review final decisions of the Nevada State Board of Medical Examiners. In this case, the Board suspended the license of Appellant, a surgeon licensed in Nevada, for rendering services to a patient while under the influence of alcohol and in an impaired condition. The Board also issued a public reprimand and imposed additional sanctions. Appellant petitioned for judicial review of the Board’s decision and requested a preliminary injunction to stay the sanctions and prevent the Board, while judicial review was pending, from filing a report with the National Practitioner Data Bank. The district court denied Appellant’s injunction request, concluding that section 630.356(2), which prohibits district courts from entering a stay of the Board’s decision pending judicial review, precluded such an action. The Supreme Court reversed, holding that section 630.356(2) impermissibly acts as a legislative encroachment on the district court’s power to do what is reasonably necessary to administer justice, and this is a violation of the separation of powers doctrine. View "Tate v. State Bd. of Med. Exam'rs" on Justia Law

In 1973, Doe organized his medical practice as a “professional association,” a type of corporation doctors are permitted to form under New Jersey law. Since its creation, Doe has operated his practice through that entity. As of 2011, the entity employed six people. The government alleges that Doe entered into an illicit agreement with OTE, a blood laboratory, whereby it paid him monetary bribes for referring patients to it for blood testing. A grand jury subpoena was served on the entity’s custodian of records, directing it to turn over documents, including records of patients referred to OTE, lease and consulting agreements, checks received by it for reasons other than patient treatment, correspondence regarding its use of OTE, correspondence with specified individuals and entities, and basic corporate records. The district court denied Doe’s motion to quash. Doe persistently refused to let the entity comply; the court found it in civil contempt. Meanwhile, the entity fired its employees and hired independent contractors, tasked with “[m]aint[aining] accurate and complete medical records, kept in accordance with HIPAA and Patient Privacy standards,” and assisting with billing practices. The Third Circuit affirmed, agreeing that Supreme Court precedent indicated that corporations may not assert a Fifth Amendment privilege, and that the subpoena was not overbroad in violation of the Fourth Amendment. View "In Re: The Matter Of The Grand Jury" on Justia Law

Ronald Hines was a Texas-licensed veterinarian who practiced since the mid-1960s. He worked mainly in traditional veterinary practices until he retired in 2002. After his retirement, he founded a website and began to post articles about pet health and care. These general writings soon turned to more targeted guidance and, as he acknowledged in his complaint, he began “to provide veterinary advice to specific pet owners about their pets.” This advice was given via email and telephone calls, and Hines “never physically examine[d] the animals that are the subject of his advice,” though he did review veterinary records provided by the animal owners. Texas required veterinarians to conduct a physical examination of an animal or its premises before they can practice veterinary medicine with respect to that animal. In 2012, the Texas Board of Veterinary Medical Examiners informed Hines that by providing veterinary advice without a physical examination, he had violated Texas law. Hines eventually agreed to: abide by the relevant state laws, including the physical examination requirement, one year of probation; a stayed suspension of his license; a $500 fine; and to retake the jurisprudence portion of the veterinary licensing exam. Hines thereafter filed suit in federal court, seeking declaratory and injunctive relief. He argued that the physical examination requirement violates his First Amendment right to free speech as well as his rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The Board moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). The district court granted the Board’s motion in part and denied it in part. With respect to the equal protection claim, the court concluded that because the law did not discriminate on the basis of any suspect classification, the count was evaluated pursuant to rational basis review, and held that the physical examination requirement passed that deferential standard. The court dismissed Hines’s substantive due process claim for similar reasons. The district court denied the motion to dismiss the First Amendment claims. It recognized that states have broad power to regulate professionals, but determined that because the physical examination requirement “regulate[s] professional speech itself,” it is subject to the First Amendment. Relying on federal Supreme Court precedent, the district court held that Hines had stated a plausible claim that the Board had infringed his First Amendment rights. The Board moved to certify for interlocutory review the district court’s order. The issue this case presented for the Fifth Circuit's review thus centered on whether Hines' First or Fourteenth Amendment rights were violated. The Court concluded it offends neither, reversing the district court’s denial of the defendants’ motion to dismiss the plaintiff’s First Amendment counts and affirming the district court’s granting of the defendants’ motion to dismiss the plaintiff’s Fourteenth Amendment counts. View "Hines v. Alldredge" 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

Vanterpool was convicted under V.I. Code tit. 14, section 706(1) for obsessive phone calls and faxes to his ex-girlfriend Jacqueline Webster. On appeal, he argued that: Section 706 was unconstitutional under the First Amendment; that his trial counsel’s performance amounted to an ineffective assistance of counsel under the Sixth Amendment; and that there was sufficient evidence in the record to support Vanterpool’s multiple convictions. The Third Circuit remanded. While the First Amendment challenge would have been viable had it been raised during trial, the plain error standard precluded relief on appeal. Trial counsel’s failure to preserve the First Amendment challenge satisfied the prejudice prong of the Strickland test, but the record was insufficient regarding whether trial counsel’s performance fell below professional norms. View "Government of the VI v. Vanterpool" on Justia Law

Petitioners Conley Hoskins and Jane Medicals, LLC, sought to vacate a trial court's order disqualifying the Peters Mair Wilcox (PMW) law firm as their counsel. The trial court disqualified the firm on the grounds that the firm previously represented another party, All Care Wellness, LLC, in the same matter for which PWM represented petitioners. Furthermore, the trial court concluded that All Care and petitioners had materially adverse interests. Petitioners argued on appeal to the Colorado Supreme Court that the trial court abused its discretion in disqualifying petitioners' retained counsel of choice. Upon review of the matter, the Supreme Court concluded the trial court record was insufficient to support the finding that the interests of petitioners and All Care were materially adverse to one another. Furthermore, the Court concluded the trial court indeed abused its discretion in disqualifying petitioners' counsel. The case was remanded for further proceedings. View "In re Colorado v. Hoskins" on Justia Law