Justia Professional Malpractice & Ethics Opinion Summaries

Plaintiff sued Defendants, health care providers, alleging professional negligence. Defendants filed a motion to compel authorization of an informal discussion with the surgeon who performed the Plaintiff’s surgery. The surgeon was not named as a defendant. Upon Plaintiff’s motion, the district court issued a protective order requiring Plaintiff to authorize the surgeon to participate in the informal discussion but restricting Defendants’ questioning of the surgeon to his own treatment of Plaintiff. Defendants filed an interlocutory appeal. Meanwhile, the parties and the surgeon participated in an informal discussion. While the interlocutory appeal was pending, the case was tried to a jury. The district court allowed the surgeon to opine on matters other than his own treatment of Plaintiff. The jury found in favor of Defendants. Thereafter, the court of appeals proceeded to decide the interlocutory appeal and reversed the district court’s protective order, concluding that Defendants were allowed to ask the surgeon about Defendants’ care of Plaintiff and the cause of her injury. The Supreme Court vacated the court of appeals’ opinion, holding that the court of appeals lacked appellate jurisdiction over the interlocutory order. View "Howard v. Svoboda" on Justia Law

After a hearing, the State Board of Nursing found that John S. Zablotny had violated his professional duties and revoked his nursing license for two years. The district court affirmed. The Supreme Court vacated the judgment and remanded for further proceedings, concluding that the district court erred in conducting an appellate-type review. On remand, the district court concluded that Zablotny had engaged in activities that constituted professional misconduct but also concluded that the Board failed to prove other allegations of professional misconduct. The Supreme Judicial Court affirmed, holding that the district court’s findings supported the conclusion that the court was not compelled, as a matter of law, to find that Zablotny violated Board rules or professional standards of care. View "Zablotny v. State Board of Nursing" on Justia Law

Acting pro se, Clay Jones sued his former attorney, Alan Whisenand, for legal malpractice and civil rights violations allegedly committed in the course of civil commitment proceedings under the Sexually Violent Predator Act (SVPA). The trial court sustained Whisenand’s demurrer to the first amended complaint without leave to amend on the grounds that: (1) Jones failed to allege actual innocence of all charges in the underlying criminal case or post-conviction exoneration; and (2) Jones failed to show that Whisenand was a “state actor” acting “under color of state law.” After review, the Court of Appeal concluded that the actual innocence requirement did not apply to SVPA proceedings. However, public policy considerations underlying the actual innocence requirement (namely, judicial economy and the desire to avoid conflicting resolutions) compelled the conclusion that alleged SVPs should not be able to pursue causes of action for legal malpractice in the course of their SVPA proceedings unless and until such proceedings have been terminated in their favor. "[O]ur conclusion does not leave alleged SVPs without a remedy while proceedings are ongoing, as they may still seek relief for ineffective assistance of counsel in the SVPA proceedings themselves. Jones does not, and cannot, allege that the pending SVPA proceedings have been terminated in his favor. We therefore conclude the trial court properly sustained Whisenand’s demurrer to Jones’s cause of action for legal malpractice." The SVPA proceedings against Jones were still pending, raising the possibility that he might be able to comply with the favorable termination requirement in the future. Accordingly, the Court concluded the demurrer should have been sustained with leave to amend. With respect to his civil rights claim, the Court concluded the trial court properly sustained the demurrer without leave to amend. View "Jones v. Whisenand" on Justia Law

After the Oklahoma Board of Medical Licensure and Supervision (Board) began investigating plaintiff-appellant, Dr. Steven Anagnost, he filed a lawsuit against several doctors and their professional companies (collectively, defendants).Anagnost alleged negligence, abuse of process, tortious interference with business relations, intentional infliction of emotional distress, and defamation. When Anagnost discovered additional information from the Board's file, he filed an amended petition asserting additional claims against the Board and certain Board members. The amended petition was filed after the newly enacted Oklahoma Citizens Participation Act, (the OCPA) became effective. The defendants sought dismissal of the lawsuit pursuant to the new dismissal provisions of the OCPA. The trial court applied the OCPA, and dismissed the negligence claims against the defendants, but denied all other requested relief. The defendants appealed and the Court of Civil Appeals affirmed in part, reversed in part, and remanded with directions. The Oklahoma Supreme Court granted certiorari to address the dispositive issue of whether the OCPA could be applied retroactively. The Court held that it could not. View "Anagnost v. Tomecek" on Justia Law

In 2000, Husband retained Attorney to draft an antenuptial agreement in anticipation of his marriage to Wife. In 2005, Wife filed for divorce. The petition was dismissed in a settlement that required the parties to execute a postnuptial agreement. Attorney drafted the agreement. In 2010, Wife again filed for divorce. Husband and Wife settled. In 2012, Husband filed suit against Attorney and his Law Firm (collectively, Defendants), alleging that Attorney negligently drafted the antenuptial and postnuptial agreements and negligently advised him. At issue in this appeal was a discovery order compelling production of any antenuptial or postnuptial agreements drafted or prepared by Attorney while he was employed at Law Firm. Defendants argued before the Supreme Court that the documents exceeded the scope of permissible discovery and were protected by the attorney-client privilege. The Supreme Court affirmed the discovery order, holding (1) the documents at issue were discoverable; and (2) Defendants did not have standing to assert the attorney-client privilege on behalf of their clients in this case, and the superior court protected the confidential interests contained in the documents by requiring redaction. View "DeCurtis v. Visconti, Boren & Campbell, Ltd." on Justia Law

In 2008, West Bend filed a legal malpractice action based on the performance of attorney Schumacher and his firm, RLGZ, in a 2005-2006 workers’ compensation matter. The parties agreed to a dismissal of that claim and entered into a tolling agreement pending the resolution of related actions. After the resolution of those claims, West Bend filed a malpractice suit against Schumacher in 2013. The district court dismissed the first and an amended complaint, concluding that the allegations were too speculative or vague. The court stated that allegations about failure to depose a doctor, failure to contact witnesses prior to the hearing, the disclosure of certain facts to opposing counsel, and that Schumacher had represented that West Bend would accept liability, did not explain “how any of these alleged acts and omissions harmed its defense.” The Seventh Circuit affirmed. The complaint did not adequately plead a claim for legal malpractice under Illinois law; it fails to allege plausibly that the outcome of the underlying action would have been more favorable to West Bend, had it not been for Schumacher’s alleged litigation conduct View "West Bend Mutual Insurance Co v. Schumacher" on Justia Law

Total Auctions and Real Estate, LLC (Total Auctions) was a licensed automobile dealer that intended to hold automobile auctions in Lincoln County. Total Auctions met with a dealer agent employed by the Division of Motor Vehicles (DMV) on how to comply with the applicable law. Total Auctions informed the agent that its business plan included the sale of vehicles consigned from dealers outside Lincoln County, the county of Total Auctions’ place of business. The agent failed to inform Total Auctions that state law prohibited auctioning vehicles consigned from dealers outside Lincoln County. After incurring expenses setting up its business, Total Auctions was informed that there was a problem with the out-of-county consignments. Total Auctions sued the DMV agent, the DMV, its director, and the Department of Revenue and Regulation, alleging negligence and negligent supervision. The court of appeals dismissed the complaint for failure to state a claim. The Supreme Court affirmed, holding that because Total Auctions’ claimed damages were caused by the agent’s alleged misrepresentation of law, relief was barred as to all claims because misrepresentations of law are not actionable. View "Total Auctions & Real Estate, LLC v. S.D. Department of Revenue & Regulation" on Justia Law

Appellees, a real estate investor and her company, filed a legal malpractice claim against Appellants, an attorney and his law firm, based on part on Appellants’ failure to assert a legal malpractice claim against third parties relating to Appellees’ purchase of a certain property. The trial court granted summary judgment in favor of Appellants on the potential malpractice claim. The court of appeals reversed. The Supreme Court reversed and reinstated the trial court’s grant of summary judgment in favor of Appellants, holding that no genuine issue of material fact existed with regard to the issue in this case and that Appellants did not agree to represent Appellees regarding their potential claim of legal malpractice against the third party relating to the purchase of the property at issue. View "Ratonel v. Roetzel & Andress, L.P.A." on Justia Law

Jeanne Ransom sued dentist Jeanine Eaton, alleging that Eaton extracted two teeth in addition to the nine agreed on in a treatment plan. Ransom served Eaton with the required pre-suit notice and included an export report, but Ransom never re-served the expert report after filing suit. After the passage of 120 days, Eaton moved to dismiss Ransom’s suit on the grounds that Ransom failed to serve her with an expert report within the 120-day deadline set forth in the Texas Medical Liability Act (TMLA). The trial court granted the motion to dismiss. The court of appeals affirmed. While Ransom’s petition for review was pending, the Supreme Court decided Hebner v. Reddy. The Supreme Court reversed in the instant case, holding (1) the holding in Hebner compelled the conclusion that Ransom satisfied the TMLA’s expert-report service requirement when she served Eaton with a report concurrent with pre-suit notice; and (2) Eaton waived any objection to the sufficiency of Ransom’s expert report by failing to raise any objection within twenty-one days after filing her original answer. View "Ransom v. Eaton" on Justia Law

Plaintiffs Michael Rose and RC&D, Inc. filed suit against Defendants Stephen Brusini and the law firm Orson & Brusini Ltd. alleging professional negligence and breach of contract. The hearing justice granted summary judgment for Defendants, concluding that there was no evidence of proximate cause linking Defendants’ alleged negligence and any damages Plaintiffs may have suffered. The Supreme Court vacated the judgment of the superior court, holding that Rose submitted sufficient competent evidence to preclude the entry of summary judgment for defendants on a question of fact relating to Defendants’ liability. Remanded. View "Rose v. Brusini" on Justia Law