Justia Professional Malpractice & Ethics Opinion Summaries

Cal-Am, a developer and operator of RV and mobile-home parks leased the Yuma Sundance RV Resort from its owner, intending to construct a new banquet and concert hall on the property. The property owner provided the funding for the construction. Cal-Am managed the project. Cal-Am hired a contractor, Nickle, to design and construct the hall, who then hired Edais Engineering to survey the property and place construction stakes to mark the Hall’s permitted location. No contract existed between Edais and Cal-Am. Edais acknowledges that its placement of the stakes was defective. Cal-Am was forced to adjust its site plan, eliminating eight RV parking spaces. Cal-Am sued Edais for claims including negligence. The trial court granted Edais summary judgment on the negligence claim finding that Cal-Am could not recover its purely economic damages. The court of appeals affirmed.The Arizona Supreme Court affirmed, repudiating its 1984 Donnelly Construction holding that a design professional’s duty to use ordinary skill, care, and diligence in rendering professional services extends both to persons in privity with the professional and to persons foreseeably affected by a breach of that duty. Under Arizona’s current framework, which repudiated foreseeability as a basis for duty, design professionals lacking privity of contract with project owners do not owe a duty to those owners to reimburse purely economic damages. View "Cal-Am Properties, Inc. v. Edais Engineering, Inc." on Justia Law

The Supreme Court held that the Texas Medical Board is not required by federal law or permitted by Texas law to merely revise an initial report of a temporary sanction, rather than void it, when the Board later finds that the allegations have not been proved.Federal and State law require the Board to report a disciplinary action against a physician to the National Practitioner Data Bank to restrict the ability of incompetent physicians to move from state to state. The Board issued a temporary sanction against Dr. Robert Wayne Van Boven while it investigated misconduct allegations. The Board then issued a final order concluding that Van Boven was not subject to sanctions. Van Bovcen brought this ultra vires action against Board officials directing them to file a Void Report with the Data Bank, which would remove the initial report against him and a subsequent revision-to-action report from disclosure. The trial court denied Defendants' plea to the jurisdiction asserting sovereign immunity. The court of appeals reversed. The Supreme Court reversed, holding that the Board officials' actions in this case were ultra vires and that the officials were not immune from Van Boven's claims. View "Van Boven v. Freshour" on Justia Law

Dr. Jacob Schmitz appealed a district court judgment affirming the final order of the State Board of Chiropractic Examiners (“Board”) imposing discipline against him. He also appealed an order entered after a limited remand denying his motion for post-judgment relief under N.D.R.Civ.P. 60(b). Dr. Schmitz was a chiropractor licensed to practice in North Dakota. He owned and practiced at Freedom Chiropractic Health Center in Fargo, North Dakota. In March 2019 the Board issued an administrative complaint against Dr. Schmitz, alleging he failed to maintain the chiropractic standard of care for patient and clinical billing records in violation of N.D. Admin. Code 17-03-01-01(3), that Dr. Schmitz’s membership plans were in violation of N.D. Admin Code 17-03-01-05, and that Dr. Schmitz used Noridian Medicare Private Contract and Advanced Beneficiary Notice (ABN) forms to have patients opt out of Medicare in violation of N.D. Admin. Code 17-03-01-01(4). The Board requested the Office of Administrative Hearings (“OAH”) to appoint an ALJ to conduct an evidentiary hearing and issue recommended findings of fact, conclusions of law, and order. Both Dr. Schmitz and the Board moved for summary judgment. The ALJ held a telephonic hearing on the competing motions, issued a recommended order granting the Board’s summary judgment motion on each of the claims, and cancelled the previously scheduled evidentiary hearing. The North Dakota Supreme Court concluded the Board’s final order, adopting an administrative law judge’s (“ALJ”) recommended order for summary judgment, erred in granting summary judgment on the Board’s claims against Dr. Schmitz. The judgment and the Board’s final order were reversed, and the matter remanded to the Board to conduct an evidentiary hearing and to supplement the administrative record. View "Schmitz v. State Board of Chiropractic Examiners" on Justia Law

The Supreme Court affirmed the order entered by the district court dismissing as time-barred Appellant's negligence claims against Community Hospital of Anaconda and Pintler Surgical Specialists (collectively, CHA), holding that there was no error.Specifically, the Supreme Court held that the district court (1) did not err by concluding that Appellant's claim against CHA was a professional negligence claim subject to the two-year period of limitations pursuant to Mont. Code Ann. 27-2-205(1); and (2) did not err by ruling that Appellant's medical negligence claim was not tolled under section 27-2-205(1) and dismissing the claim as time-barred. View "Selensky-Foust v. Mercer" on Justia Law

On November 21, 2017, Richard Bush presented to Saint Bernard Parish Hospital for depression and suicidal ideations. At the hospital, Dr. Miguel Aguilera treated and discharged him. Bush attempted re-admittance with the same complaints, but was refused re-admittance. Thereafter, Bush attempted suicide in the hospital bathroom. He was found alive and transported to University Hospital in New Orleans for treatment; however, he succumbed to his injuries from the suicide attempt and died on November 30, 2017. In November 2018, his wife, Patricia Bush, on behalf of herself, her daughters, Madalyn and Ashley Bush, and on behalf of the decedent, Richard Bush, filed a formal pro se complaint with the Patient Compensation Fund (“PCF”) to convene a medical review panel (“MRP”), naming Saint Bernard Parish Hospital and Dr. Aguilera for malpractice relating to Richard Bush's death. The Louisiana Supreme Court granted this writ application in order to determine: (1) whether contra non valentem interrupted prescription; and (2) whether the court of appeal erred in relying on documents that were not entered as evidence and were not part of the record. The Court found that, while contra non valentem may interrupt prescription in a wrongful death claim in certain instances, it did not interrupt prescription in this case due to the fact that the court of appeal incorrectly considered documents that were not in evidence. The Court reversed the court of appeal’s ruling in part, affirmed in part, and remanded for further proceedings. View "Medical Review Panel for the Claim of Richard Bush" on Justia Law

Dennis Henderson and James Henderson, individually and as co-trustees of the Rose Henderson Peterson Mineral Trust, appealed a district court judgment in which the court determined they paid themselves an unreasonable amount of compensation from the Trust for their duties as trustees. The court ordered the Trustees return a portion of the compensation and that all parties’ attorney fees be paid with Trust funds. On appeal, the North Dakota Supreme Court found the questions presented in this case were not barred by the law of the case doctrine or res judicata. Furthermore, the Court determined that additional findings were required concerning application of an exculpatory provision in the Trust as well as the issue of whether the doctrine of laches applies. The Court retained jurisdiction but remanded for additional findings. View "Matter of Rose Henderson Peterson Mineral Trust" on Justia Law

The Supreme Court affirmed the judgment of the court of appeals that the attorney-immunity defense was inapplicable to federal wiretap claims but reversed and rendered judgment for the defendant-attorney on Plaintiffs' state wiretap claims, holding that the attorney-immunity defense was inapplicable to the federal wiretap claims but did attach to the state wiretap claims.Plaintiffs brought this private party civil suit asserting that Defendant and others had violated the federal and Texas wiretap statutes by using and disclosing illegally intercepted electronic communications. Defendant moved for summary judgment, arguing that she was immune from liability as a matter of law because Plaintiffs' claims all stemmed from her role as an attorney in a modification proceeding. The trial court agreed and rendered summary judgment for Defendant. The court of appeals reversed. The Supreme Court affirmed in part and reversed in part, holding (1) Defendant was entitled to summary judgment on the state wiretapping claims; but (2) Defendant was not entitled to summary judgment on the claims under the federal wiretap statute because this Court is not convinced that federal courts would apply Texas's common-law attorney-immunity defense to that statute. View "Taylor v. Tolbert" on Justia Law

In this medical malpractice case the Supreme Court reversed the decision of the court of appeals reversing the judgment of the trial court denying Defendants' motion to dismiss, holding that the trial court did not abuse its discretion in concluding that a timely-served expert report demonstrated a good faith effort to comply with the requirements of the Texas Medical Liability Act.Plaintiffs brought this case alleging that negligent perinatal care during labor and delivery caused their infant's brain damage and other serious health conditions. On the infant's behalf, Plaintiffs sued their treating physician and other healthcare providers and served expert reports on Defendants, including a report by Dr. James Balducci, an obstetrician. Plaintiff's treating physician filed a motion to dismiss, which the trial court denied. The court of appeals reversed and dismissed the claims against the treating physician with prejudice on the grounds that Dr. Balducci's report was insufficient to support Plaintiffs' healthcare liability claims. The Supreme Court reversed, holding that the trial court did not abuse its discretion in concluding that the expert report satisfied the "fair summary" standard in Tex. Civ. Proc. & Rem. Code 74.351(l), (r)(6). View "E.D. v Texas Health Care, PLLC" on Justia Law

In 1994, the Georgia Supreme Court approved State Bar of Georgia Formal Advisory Opinion (“FAO”) 94 -3, which addressed and provided guidance concerning former Standard of Conduct 47 in on whether a lawyer could properly contact and interview former employees of an organization represented by counsel to obtain information relevant to litigation against the organization. In 2000, the Supreme Court issued an order adopting the Georgia Rules of Professional Conduct (“GRPC”) found in Bar Rule 4-102 (d), which replaced the Standards of Conduct. The State Bar’s Formal Advisory Opinion Board (“Board”) determined that the substance and conclusion reached in FAO 94 -3 remained the same under the applicable GRPC. The Georgia Defense Lawyers Association (“GDLA”) raised concerns over FAO 20-1, contending that former employees fall within the “three types of agents or employees of a represented organization who may not be contacted on an ex parte basis by an opposing lawyer[.]” The Supreme Court retracted Formal Advisory Opinion 94-3 and approved Formal Advisory Opinion 20-1, with modifications. View "In re: Formal Advisory Opinion No. 20-1" on Justia Law

Jennings, who was not a medical professional, ran Results Weight Loss Clinic in Lombard, Illinois. Jennings paid Mikaitis, who was working full‐time for a hospital in Lockport, Illinois cash to secure a Drug Enforcement Agency registration number for the clinic and to review patient charts. Over the next two years, Jennings ordered over 530,000 diet pills (controlled substances) for over $84,000 using Mikaitis’s credit card and DEA number. Mikaitis appeared at Results weekly to get $1,750 cash and review four to eight charts. Results also gave drugs—in person and by mail— to many patients whose charts he never reviewed. A nurse practitioner who worked at the clinic later testified she noticed almost immediately that Jennings was unlawfully distributing drugs. Jennings paid Mikaitis about $98,000 cash, in addition to reimbursement for drug costs.Mikaitis was tried on 17 counts. He denied knowing about illegal activity. The district judge issued a deliberate avoidance (ostrich) instruction. Convicted, Mikaitis was sentenced to 30 months. The Seventh Circuit affirmed. Ample evidence demonstrated that Mikaitis subjectively believed that there was a high probability he was participating in criminal activity and that he took specific, deliberate actions to avoid learning that fact. Mikaitis was a medical professional with corresponding duties. The jury was free to conclude the red flags were obvious to him. View "United States v. Mikaitis" on Justia Law