Justia Professional Malpractice & Ethics Opinion Summaries

On January 23, 2015, Judge Callie Granade of the United States District Court for the Southern District of Alabama, issued an order declaring unconstitutional both the Alabama Sanctity of Marriage Amendment, and the Alabama Marriage Protection Act, as violating the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Thereafter, the federal court entered an injunction prohibiting the Alabama Attorney General from enforcing any Alabama law that prohibited same-sex marriage. The injunction was to allow time for an appeal of that decision to the Eleventh Circuit Court of Appeals. On January 27, 2015, Roy Moore, Chief Justice of the Alabama Supreme Court, sent a letter, on Supreme Court of Alabama letterhead, to then Governor Robert Bentley regarding Judge Granade’s orders, expressing "legitimate concerns about the propriety of federal court jurisdiction over the Alabama Sanctity of Marriage Amendment." In his three-page letter, Chief Justice Moore laid out his arguments as to why Judge Granade’s federal-court orders were not binding upon the State of Alabama, and ultimately directed Alabama’s probate judges not to recognize marriage licenses for same-sex couples. Months later, the Alabama Supreme Court released a per curiam opinion ordering the probate judges named as respondents to discontinue issuing marriage licenses to same-sex couples in compliance with Alabama law. Chief Justice Moore’s name did not appear in the vote line of this opinion, nor did he author or join any of the special writings. On June 26, 2015, the United States Supreme Court issued its opinion in “Obergefell,” holding that "same-sex couples may exercise the fundamental right to marry in all States" and that "there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character." The Court of the Judiciary ultimately suspended Chief Justice Moore for his defiance of the laws. He appealed, and the Alabama Supreme Court determined it was “obligated to follow prior precedent” that it had no authority to disturb the sanction imposed by the Court of the Judiciary: “[b]ecause we have previously determined that the charges were proven by clear and convincing evidence and there is no indication that the sanction imposed was plainly and palpably wrong, manifestly unjust, or without supporting evidence, we shall not disturb the sanction imposed.” View "Moore v. Alabama Judicial Inquiry Commission" on Justia Law

Plaintiffs filed suit against defendants after he was suspended from his position as a physician at Cedars-Sinai. The suspension stemmed from plaintiff's operation on a young patient, which resulted in complications requiring corrective surgery. The trial court granted the hospital's anti-SLAPP, Code of Civil Procedure 425.16, motion based on its contention that plaintiff's claim arose out of a protected activity—the medical staff's peer review process—and that plaintiff could not show a probability of success on the merits. The court concluded that defendants' acts relating to plaintiff's suspension and peer review process constituted protected activity for purposes of the anti-SLAPP statute and plaintiff's claims arose from that protected activity. Because plaintiffs' claims arose from defendants' protected activity, the burden shifted to plaintiff to submit admissible evidence supporting a prima facie case in his favor. In this case, the court concluded that plaintiff failed to establish a probability of success on the merits of his claims under the Health and Safety Code and he failed to exhaust his administrative remedies. Accordingly, the court affirmed the judgment. View "Melamed v. Cedars-Sinai Medical Center" on Justia Law

An Ohio State Dental Board-recognized specialist must complete a postdoctoral education program in a specialty recognized by the American Dental Association and limit the scope of his practice to that specialty. The use of the terms “specialist”, “specializes” or “practice limited to” or the terms “orthodontist”, “oral and maxillofacial surgeon”, “oral and maxillofacial radiologist”, “periodontist”, “pediatric dentist”, “prosthodontist”, “endodontist”, “oral pathologist”, or “public health dentist” or similar terms is limited to licensed Board-recognized specialists.. Any general dentist who uses those terms in advertisements can have his dental license placed on probationary status, suspended, or revoked. Kiser, a licensed dentist with postdoctoral education in endodontics (root-canal procedures). does not to limit his practice exclusively to endodontics. The Board’s regulations treat him as a general dentist. He is banned from using the word “endodontist” in his advertisements. In 2009, the Board warned Kiser with respect to the regulations, but did not take further action. In 2012, Kiser requested that the Board review signage that would include the terms “endodontist” and “general dentist.” The Board neither approved nor rejected Kiser’s proposed signage, but recommended that he consult legal counsel. Kiser challenged the regulations as violating: the First Amendment right to commercial speech; substantive and procedural due process; and equal protection. The district court twice dismissed Kiser’s claims. The Sixth Circuit reversed in part, finding that Kiser had stated viable claims with respect to the First Amendment, substantive due process, and equal protection. View "Kiser v. Kamdar" on Justia Law

Plaintiff filed suit against the State Bar, alleging a due process claim under 42 U.S.C. 1983. Specifically, plaintiff alleged that the State Bar’s rules applied the same standards and procedures for reinstatement for disbarred attorneys to attorneys suspended for more than 90 days, amounted to “defacto disbarment,” and violated his Fourteenth Amendment due process rights. The district court dismissed the complaint as barred by the Eleventh Amendment and then denied plaintiff's motion to alter or amend the judgment. Determining that the court has jurisdiction to hear plaintiff's appeal, the court agreed with the district court's conclusion that the Alabama State Bar is an arm of the state of Alabama and thus enjoys Eleventh Amendment immunity from plaintiff's section 1983 claim. Further, the court concluded that the district court did not abuse its discretion in denying plaintiff's FRCP 59(e) motion where, to the extent plaintiff contends his due process claim was a “direct action” under the Fourteenth Amendment, his amended complaint did not allege such a claim, and he could not use his Rule 59(e) motion to do so. Accordingly, the court affirmed the judgment. View "Nichols v. Alabama State Bar" on Justia Law

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