Justia Professional Malpractice & Ethics Opinion Summaries

Licensed nurses may be disciplined if they engage in “unprofessional conduct.” The applicable Delaware statute did not define “unprofessional conduct,” so the Board of Nursing adopted a rule to flesh the term out. Two nurses who held supervisory roles at a correctional facility were disciplined by the Board under that rule after they participated in the retrieval of medication from a medical waste container for eventual administration to an inmate. The nurses appealed to the Superior Court, and the court set their discipline aside. The court read the Board’s rule to require not just proof that the nurses breached a nursing standard, but also proof that in doing so, they put the inmate or the public at risk. And in the court’s view, the State had not made that showing. Because the Board applied the correct standard and its decision was supported by substantial evidence, the Delaware Supreme Court affirmed its decision and reversed the Superior Court. View "Delaware Board of Nursing v. Francis" on Justia Law

D.A.R. appealed a circuit court judgment dismissing his complaint against R.E.L., D.H., and R.H. D.A.R., a licensed attorney practicing in Alabama, filed a complaint against R.E.L., D.H., and R.H. R.E.L. was also a licensed attorney, and was employed as an assistant general counsel for the Alabama State Bar ("the ASB"). D.H. and R.H. were brothers; they were not attorneys. According to the complaint, at some point before December 2007, R.E.L. and D.H. began "a personal, professional and/or sexual relationship," and R.E.L. and R.H. began "a personal and/or professional relationship." D.A.R. alleged that in December 2007, at R.E.L.'s recommendation and with his assistance, D.H. and R.H. "filed a baseless complaint against [D.A.R.] with the ASB." D.A.R. alleged that the motivation for the complaint was to use it "as a means to protect [D.H. and R.H.] from liability for a debt owed by [them] to a client represented by [D.A.R.] and/or as retaliation for his role in representing that client." According to D.A.R., R.E.L. knew when it was filed that the complaint against D.A.R. was baseless in fact and in law. R.E.L. asserted the defense of absolute immunity, but presented arguments to the trial court establishing why quasi-judicial immunity should apply to the facts presented in D.A.R.'s complaint. The Alabama Supreme Court found D.A.R. failed to demonstrate the trial court erred by dismissing his complaint on the grounds he presented to it, and as such, affirmed the trial court's judgment. View "D. A. R. v. R.E.L., D.H., and R.H." on Justia Law

The issue this case presented for the Georgia Supreme Court concerned the constitutionality of the appointment process created by House Bill 597 (HB 597), a DeKalb County local law that delegated to private entities the power to appoint certain members of the DeKalb County Board of Ethics. The trial court found the appointment process created by HB 597 was unconstitutional and granted the writ of quo warranto as to four challenged Board members. The Board appealed this ruling, and the Supreme Court found the the trial court correctly granted the writ of quo warranto as to the four challenged Board members appointed by private entities, as these appointments were unconstitutional. View "Delay v. Sutton" on Justia Law

Richard Joyce appealed the decision of an appellate officer within the Office of Professional Regulation dismissing his appeal for failure to file a statement of questions for consideration on appeal and complete the record for appellate review by ordering a transcript. Joyce has been a licensed surveyor since 1969. In 2014, Joyce completed a survey of the boundary between two adjoining properties. One of the property owners filed a complaint with the Office of Professional Regulation, Board of Land Surveyors (OPR) regarding Joyce's compliance with professional surveying standards. OPR opened an investigation into the complaint and, after review ultimately dismissed the complaint. Months later, OPR sent Joyce a letter stating that "[n]ew evidence ha[d] been brought to [its] attention . . . that warrant[ed] further investigation and reconsideration." OPR did not disclose the nature or origin of the new evidence. OPR sent Joyce a letter notifying him that "[t]he State Prosecuting Attorney ha[d] filed the enclosed charges and ha[d] asked the Office of Professional Regulation to take disciplinary action against [his surveying] license." A hearing on the charges was held in June 2017; OPR fined Joyce $750 and placed a two-year condition on his surveying license, requiring that he complete additional surveying training within 180 days of the entry of the order. The order noted Joyce's right to file an appeal with an OPR appellate officer within thirty days of the entry of the order. The order also contained instructions on how to request forms for proceeding in forma pauperis, including a statement that in forma pauperis status would make Joyce eligible to receive a transcript of the June hearing without cost. In his filing, Joyce's attorney reiterated that the appeal presented two legal issues, both raised in the attorney's notice of appeal, and that a transcript was unnecessary for resolution of the appeal. Neither Joyce nor his attorney filed a statement of questions, ordered a transcript of the June 2017 hearing, or filed a brief. The Vermont Supreme Court found that because Joyce provided the appellate officer with neither a statement of questions nor a transcript, per OPR rules, the record was not complete, and the appellate officer was effectively unable to conduct a review of the proceedings below. The appellate officer correctly considered the factors relevant to the decision not to review Joyce's filings in a summary manner and to dismiss Joyce's appeal, specifically, the procedural irregularities in the appeal that essentially foreclosed appellate review. View "In re Richard H. Joyce" on Justia Law

The Supreme Court affirmed the judgment of the circuit court quashing its preliminary writ in mandamus and denying Bryan Robison’s request for a permanent writ against the director of the Department of Insurance, Financial Institutions, and Professional Registration (Department), holding that Robison failed to demonstrate he was entitled to mandamus relief.One month before Robison’s license as a general bail bond agent was set to expire, he applied to renew his license with the director of the Department. As a result of Robison’s outstanding forfeitures and judgments, the director denied Robison’s application for renewal. Rather than exercising his right to file a complaint with the Administrative Hearing Commission, Robison filed a petition for a writ of mandamus, alleging that the director denied his renewal application without proper notice and an opportunity to be heard. The circuit court quashed its preliminary writ and denied Robison’s request for a permanent writ of mandamus. The Supreme Court held that the circuit court did not abuse its discretion because the director properly exercised her discretion by refusing the renewal request pursuant to her statutory authority and this Court’s rules. View "State ex rel. Robison v. Lindley-Myers" on Justia Law

The Supreme Court affirmed the judgment of the district court reversing the decision of the Office of the Commissioner of Political Practices (the Commissioner) that the Montana Department of Fish Wildlife and Parks (FWP) was responsible for ethics violations.Trap Free Montana Public Lands (Trap Free) filed an ethics complaint alleging that FWP allowed the Montana Trappers Association (MTA) to use an FWP-owned trailer and equipment in MTA’s efforts to oppose a ballot initiative, in violation of Mont. Code Ann. 2-2-101 and -121. A hearing examiner found that FWP staff were responsible for three statutory violations for the occasions when MTA members used the trailer and equipment in conjunction with its political advocacy efforts. The Commissioner adopted the hearing examiner’s recommendation that the Commissioner impose an administrative penalty on FWP. The district court reversed, concluding that FWP employees did not violate state ethics laws. The Supreme Court affirmed, holding that where section 2-2-121(3)(a) prohibits public employees from using public resources for political purposes, and where MTA members are not public employees, there was no violation of the ethics code. View "Montana Fish, Wildlife and Parks v. Trap Free Montana Public Lands" on Justia Law

The Board of Ethics (“Board”) filed formal charges against respondents, Walter Monsour and Jordan Monsour. Respondents filed separate motions for summary judgment with the Ethics Adjudicatory Board (“EAB”), seeking dismissal of the charges and attaching exhibits in support of their motions for summary judgment. The Board opposed the motions and attached exhibits in support of its opposition. Respondents filed a reply memorandum, arguing the exhibits attached to the Board’s opposition did not constitute competent evidence because they were unsworn, unverified, and not self-proving. The EAB denied respondents’ objections to the Board’s exhibits and admitted them into evidence. At the end of the hearing, the EAB took the motion for summary judgment under advisement. Respondents sought supervisory review of the ruling admitting the exhibits into evidence. The court of appeal found the EAB erred in admitting the Board's exhibits, because these exhibits did not meet the requirements of La. Code Civ. P. arts. 966 and 967. Accordingly, the court reversed the EAB’s ruling and remanded for further proceedings. Two judges dissented in part, and would have allowed the Board, on remand, to submit competent evidence prior to a ruling on the motion for summary judgment. The Louisiana Supreme Court concluded the evidence produced in connection with motions for summary judgment in these administrative proceedings had to conform to the same requirements applicable to civil proceedings. Accordingly, the Court affirmed the judgment of the court of appeal and remanded the case to the EAB for further proceedings. View "Board of Ethics in the Matter of Jordan Monsour & Walter Monsour" on Justia Law

The Board of Directors (the Board) of Bear Valley Community Hospital (Bear Valley) refused to promote Dr. Robert O. Powell from provisional to active staff membership and reappointment to Bear Valley's medical staff. Dr. Powell appealed the superior court judgment denying his petition for writ of mandate to void the Board's decision and for reinstatement of his medical staff privileges. Dr. Powell practiced medicine in both Texas and California as a general surgeon. In 2000, the medical executive committee of Brownwood Regional Medical Center (Brownwood), in Texas, found that Dr. Powell failed to advise a young boy's parents that he severed the boy's vas deferens during a hernia procedure or of the ensuing implications. Further, the committee found that Dr. Powell falsely represented to Brownwood's medical staff, on at least two occasions, that he fully disclosed the circumstances to the parents, behavior which the committee considered to be dishonest, obstructive, and which prevented appropriate follow-up care. Based on the committee's findings, Brownwood terminated Dr. Powell's staff membership and clinical privileges. In subsequent years, Dr. Powell obtained staff privileges at other medical facilities. In October 2011, Dr. Powell applied for appointment to the medical staff at Bear Valley. On his initial application form, Dr. Powell was given an opportunity to disclose whether his clinical privileges had ever been revoked by any medical facility. In administrative hearings generated by the Bear Valley Board’s decision, there was a revelation that Dr. Powell had not been completely forthcoming about the Brownwood termination, and alleged the doctor mislead the judicial review committee (“JRC”) about the circumstances leading to that termination. Under Bear Valley's bylaws, Dr. Powell had the right to an administrative appeal of the JRC's decision; he chose, however, to bypass an administrative appeal and directly petition the superior court for a writ of mandamus. In superior court, Dr. Powell filed a petition for writ of mandate under Code of Civil Procedure sections 1094.5 and 1094.6, seeking to void the JRC's/Board's decision and to have his medical privileges reinstated. The trial court denied the petition, and this appeal followed. On appeal of the superior court’s denial, Dr. Powell argued he was entitled to a hearing before the lapse of his provisional staff privileges: that the Board surreptitiously terminated his staff privileges, presumably for a medical disciplinary cause, by allowing his privileges to lapse and failing to act. The Court of Appeal determined the Bear Valley Board had little to no insight into the true circumstances of Dr. Powell’s termination at Brownwood or the extent of his misrepresentations, thus the Board properly exercised independent judgment based on the information presented. In summary, the Court of Appeal concluded Bear Valley provided Dr. Powell a fair procedure in denying his request for active staff privileges and reappointment to the medical staff. View "Powell v. Bear Valley Community Hospital" on Justia Law

The Oregon Commission on Judicial Fitness and Disability filed a formal complaint alleging 13 misconduct counts against respondent, the Honorable Vance Day, involving Oregon Code of Judicial Conduct Rule 2.1; Rule 2.2; Rule 3.3(B); Rule 3.7(B); courteous to litigants); and Article VII (Amended), sections 8(1)(b), (c), and (e), of the Oregon Constitution. After conducting a hearing, the commission filed a recommendation with the Oregon Supreme Court, to the effect that clear and convincing evidence supported a conclusion that respondent had violated multiple rules with respect to eight of the counts, including violations not alleged in the complaint. The commission further recommended that respondent be removed from office. Respondent argued the Supreme Court should have dismissed all or several counts for procedural reasons; that the commission did not sufficiently prove the alleged misconduct; and, in any event, that the only appropriate sanction was a censure. After review, the Oregon Court dismissed two of the eight counts of the complaint that were at issue; the Court declined to consider any violation that the Commission did not originally allege in its complaint. The Supreme Court concluded the Commission proved by clear and convincing evidence that respondent engaged in some of the misconduct alleged in the remaining six counts. The Court suspended respondent, without pay, for three years. View "In re Day" on Justia Law

On September 28, 2016, the Medical Board filed an accusation against Alfred Adams, M.D., alleging that he prescribed himself controlled substances, failed to cooperate with the board, and failed to provide an accurate address. The accusation was served by certified mail on his Emeryville address of record. The unopened mail was returned, stamped “Return to Sender, Unable to Forward.” On November 1, the board sent notice of default by certified mail, which was also returned. After a Lexis search, the board served the accusation by certified mail to another Emeryville address. On January 20, 2017, the board issued a default decision, revoking Adams’s medical license, which was served by certified mail and first class mail to both addresses. On April 7, 2017, Adams sought mandamus relief, claiming that no evidence established service. The court directed the board to set aside its default decision. The court of appeal ruled in favor of the board. Section 11505(c) authorizes service of a document adversely affecting one’s rights by registered mail and “does not require proof of service in the form of a return receipt signed by the party or other acknowledgement of receipt by the party.” Section 8311 authorizes “any other means of physical delivery that provides a receipt” but does not impose this requirement if service is made by certified mail. View "Medical Board of California v. Superior Court" on Justia Law