Justia Professional Malpractice & Ethics Opinion Summaries

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

McNair obtained a commercial driver’s license (CDL) in 2000 and began driving. McNair has a history of diabetes and cognitive deficits. While under the care of Department of Public Health (DPH) physicians, McNair signed forms, stating that his medical records would not be released without his written authorization, absent an articulated exception. One exception applied if the DPH was “permitted or required by law” to release the information. In 2002, Dr. Pope advised “serious caution" in recommending that the CDL be renewed. In 2004. Dr. Kim refused to certify McNair for a CDL. None of the other physicians would agree to certify him. Dr. Kim wrote a letter to support McNair's application for SSI disability benefits, stating her opinion,that he was not able to hold down any type of full-time employment. Later, Alameda County Transit hired McNair as a bus operator. After learning of his job and that McNair had applied for a certificate to drive school busses, Kim contacted the DMV. McNair’s CDL was temporarily revoked. He lost his job. McNair filed suit alleging breach of his medical privacy rights. The court of appeal affirmed summary adjudication, finding his intentional tort and breach of contract claims barred by the litigation privilege, Civil Code 47(b); both claims were based solely on the propriety of Kim‟s letter to the DMV. View "McNair v. City and County of San Francisco" on Justia Law

During 2012-2013, three undercover DEA agents posed as patients during an investigation into Dr. Zaidi’s controlled substances prescription practices. As a result, the DEA Deputy Administrator suspended Zaidi’s controlled substances prescription privileges, finding that his continued registration posed an imminent danger to the public health and safety, 21 U.S.C. 824(d). DEA agents also seized controlled substances from Zaidi’s offices. Following a hearing, an ALJ recommended that the suspension and seizure be affirmed and that Zaidi's registration be revoked. The Administrator affirmed the suspension and seizure, but found the registration issue was moot due to the expiration of Zaidi’s registration and his decision not to seek renewal. The Sixth Circuit affirmed, rejecting arguments that the ALJ arbitrarily and capriciously denied Zaidi the opportunity to present testimony from an expert, employees, and former patients; there was insufficient evidence to support the suspension; the government failed to make a prima facie showing that Zaidi’s continued registration was inconsistent with the public interest; Zaidi’ prescriptions to the three undercover officers were not outside the usual course of professional practice and did not lack a legitimate medical purpose; Zaidi did not falsify medical records; and the sanction imposed was disproportionately harsh. View "Akhtar-Zaidi v. Drug Enforcement Administration" on Justia Law

When Chelsea was five months old, she was dropped and suffered a skull fracture. As the fracture expanded, a cyst formed. The fracture and cyst were not a problem until, at age 17, she was hit in the head and suffered a loss of consciousness, blurred vision, and dizziness. After CT and MRI scans confirmed the extent of the fracture and the cyst, Chelsea underwent “cranioplasty” surgery. She was discharged after one day and was found dead in her bed three days later. A board‐certified forensic pathologist was unable to identify a cause of death and, based on the opinion of a neuropathologist, concluded that Chelsea had died from a seizure brought about by surgical damage. Neither doctor was aware of or had reviewed the pre‐surgery CT and MRI scans when they made their findings. Chelsea’s mother sued the hospital and doctors, arguing that anti-seizure medicine should have been prescribed. The defendants argued that no seizure had occurred and that a heart‐related ailment was the likely cause of death. A jury found in the defendants’ favor. The Seventh Circuit vacated, finding that one defense expert lacked the requisite qualifications to opine that a heart ailment was the likely cause of death and that there was a significant chance that the erroneous admission of the testimony affected the trial’s outcome. View "Hall v. Flannery" on Justia Law

Hannon, an attorney, represented Barber in litigation against the victim, Barber’s former domestic partner, Dr. Magno. In December 2006, the parties agreed that Barber would fund a college trust for their children. Barber paid $27,500.32 to Hannon as the trustee of the children’s funds and authorized Hannon to open a bank account. In February 2011, the victim became aware that the children’s funds had been misappropriated. Hannon may have used the money to cover legal fees owed by Barber. Charged with grand theft by embezzlement by a fiduciary (Pen. Code 487(a), 506), Hannon ultimately pled no contest to misdemeanor theft by embezzlement. The trial court placed him on probation for two years, ordered him to perform 240 hours of community service, and ordered him to pay $40,800 in restitution to the victim: $25,000 in attorney’s fees, $15,000 in lost wages, and $800 in mileage. The court of appeal rejected challenges to the restitution award and held that the victim was entitled to file a victim impact statement on appeal, pursuant to the Victims’ Bill of Rights Act of 2008 (Marsy’s Law, Proposition 9 (2008)), but may not raise present legal issues not raised by Hannon or facts not in the record below View "People v. Hannon" on Justia Law

Counsel for appellant Martin Frantz hired attorney Merlyn Clark as an expert witness in an unrelated matter in 2009. Clark was a partner with respondent law firm Hawley Troxell Ennis & Hawley LLP (“Hawley Troxell”). In 2010, Frantz’ creditor, Idaho Independent Bank, hired Hawley Troxell to represent it in a contract action against Frantz. In 2011, while that matter was pending, Frantz filed for bankruptcy. Hawley Troxell continued to represent the Bank as a creditor in the bankruptcy, including in an adversary proceeding the Bank filed against Frantz in 2013. Frantz alleged in the adversary proceeding that Clark’s interactions with Frantz in the 2009 matter created an attorney-client relationship and that it was therefore a conflict of interest for Clark’s firm to represent the Bank against Frantz. Frantz also alleged that Hawley Troxell improperly used confidential information Clark acquired in the 2009 matter. The bankruptcy court concluded that there was no attorney-client relationship between Clark (or Hawley Troxell) and Frantz. The adversary proceeding was later dismissed as moot. Frantz subsequently sued Hawley Troxell in Idaho district court, alleging legal malpractice and breach of fiduciary duty. The district court denied pro hac vice admission to attorney Jeffrey Katz, Frantz’ chosen counsel. The district court also dismissed the complaint on the grounds of judicial estoppel, lack of standing, and abatement. Finally, it awarded Hawley Troxell attorney fees under Idaho Code sections 12-120(3) and 12-121. Frantz appealed the denial of pro hac vice admission, the dismissal of his complaint, and the award of attorney fees. Finding no reversible error after review of the trial court record, the Supreme Court affirmed. View "Frantz v. Troxell" on Justia Law

Holly and Robert Labair filed a legal malpractice claim for Steve Carey and Carey Law Firm (collectively, Carey) related to Carey’s representation of them in a medical malpractice action. The district court granted summary judgment to Carey. The Supreme Court reversed and remanded to the district court for a trial to establish two required components of the damages element of the Labairs’ claim: (1) that it was more probable than not that they would have recovered a settlement or judgment but for Carey’s negligence, and (2) the value of the lost settlement and/or judgment. After a trial, the jury indicated that the Labairs would not have settled the underlying medical malpractice claim. The district court formally entered judgment in favor of Carey. The Supreme Court vacated the judgment, holding that the district court erred in instructing the jury to decide whether Plaintiffs would have settled the underlying medical malpractice suit. Remanded for a new trial on the question of the value of the lost opportunity to settle. View "Labair v. Carey" on Justia Law

Heartland Title Services, Inc. filed a petition in the circuit court of Jackson County alleging professional malpractice claims against Paul Hasty and Hasty and Associates, LLC (collectively, Hasty). Hasty filed a motion to dismiss Heartland’s professional malpractice claim for lack of venue, arguing that the tort injury alleged occurred outside Missouri. The circuit court dismissed the count for lack of venue. Heartland sought relief in the Supreme Court with this original proceeding in mandamus. The Supreme Court issued a preliminary writ and then made permanent the preliminary writ, holding that venue was proper in any county in Missouri, including Jackson County. View "State ex rel. Heartland Title Services, Inc. v. Honorable Kevin D. Harrell" on Justia Law

The Mississippi Commission on Judicial Performance recommended to the Mississippi Supreme Court that former Madison County Justice Court Judge William “Bill” Weisenberger Sr. be removed from office after finding by clear and convincing evidence that Weisenberger physically and verbally assaulted a mentally disabled individual at the 2014 Canton Flea Market. Because of the egregious nature of Weisenberger’s actions, the Supreme Court agreed with the Commission’s recommendation and removed Weisenberger from office. Weisenberger was directed to pay a fine in the amount of $1,000 and costs of these proceedings in the amount of $5,918.46. View "Mississippi Comm'n on Judicial Perf. v. Weisenberger" on Justia Law

Tina McColl filed a complaint against Michael Lang, N.D., a licensed naturopathic physician, after Lang used black salve to remove a blemish on Lang’s nose, which resulted in an infected third degree burn on McColl’s nose. The jury found Lang departed from the standard of care in his treatment of McColl, which resulted in damages. The jury, however, unanimously denied punitive damages. McColl appealed, seeking a new trial on the issue of punitive damages. The Supreme Court affirmed, holding that the district court did not abuse its discretion when it (1) granted Lang’s motion to exclude evidence of the Food, Drug, and Cosmetic Act prohibition against selling, marketing, or manufacturing drugs not FDA approved and the FDA warning letters regarding the use of black salve as a cure for cancer; and (2) denied McColl’s motion to exclude the testimony of Lang’s expert on the standard of care for a naturopathic physician. View "McColl v. Lang" on Justia Law