Justia Professional Malpractice & Ethics Opinion Summaries

David Savell filed a complaint against Michael Duddy and the law firm of Kelly, Remmel & Zimmerman (KRZ) founded upon his assertion that an attorney-client relationship existed between himself and Duddy. Among other claims, Savell alleged claims for attorney malpractice and breach of fiduciary duty. The court granted Duddy and KRZ’s motion for summary judgment, concluding that Savell failed to demonstrate an attorney-client relationship between himself and Duddy. The Supreme Judicial Court affirmed, holding (1) an attorney-client relationship did not exist between Savell and Duddy; and (2) Duddy did not owe Savell a duty of care as a nonclient. View "Savell v. Duddy" on Justia Law

Westside Gilts RE, LLC submitted an application to the Beadle County Planning Commission for a conditional use permit (CUP) to construct and operate a concentrated animal feeding operation. The Planning Commission recommended approval of the CUP. The Beadle County Board of Adjustment (Board) approved the CUP. Petitioners appealed, arguing that the Board was without authority to issue the CUP because the county zoning ordinances passed in 2011 (Ordinances), which authorized the Board to grant the permit, were improperly enacted. The circuit court reversed the Board’s decision granting the CUP, concluding that the Ordinances were improperly enacted. The Supreme Court (1) affirmed the circuit court’s ruling reversing the Board’s decision to grant the CUP, holding that the Ordinances were invalid because the Planning Commission failed to comply with S.D. Codified Laws 11-2-18, and therefore, the Board lacked jurisdiction to grant a CUP; but (2) reversed the circuit court’s order declaring the Ordinances invalid, as the order exceeded the options available to the court under its limited scope of review on certiorari. View "Wedel v. Beadle County Comm’n" on Justia Law

Tower Homes, LLC retained William Heaton and his law firm (collectively, Heaton) for legal guidance in developing a residential common ownership project. The project eventually failed, and Tower Homes entered Chapter 11 bankruptcy protection. The plan of reorganization and confirmation order stated that the trustee and bankruptcy estate retained all legal claims. The trustee subsequently entered into a stipulation with a group of creditors (collectively, the Creditors) permitting the Creditors to pursue any legal malpractice claims in the Tower Homes’ name. The bankruptcy court then entered an order authorizing the trustee to permit the Creditors to pursue Tower Homes’ legal malpractice claim in Tower Homes’ name. The Creditors subsequently filed a legal malpractice lawsuit against Heaton, naming Tower Homes as plaintiff. The district court granted summary judgment in favor of Heaton, concluding that the stipulation and order constituted an impermissible assignment of a legal malpractice claim to the Creditors. The Supreme Court affirmed, holding (1) the stipulation and order constituted an assignment, which is prohibited under Nevada law; and (2) the Creditors may bring a debtor’s legal malpractice claim pursuant to 11 U.S.C. 1123(b)(3)(B) when certain conditions are met, but those conditions were not met in this case. View "Tower Homes, LLC v. Heaton" on Justia Law

Plaintiff sought treatment for sleep apnea from an orthodontist. Plaintiff used the appliance given to him for treatment but complained that it caused the dislocation of some teeth. Contending that the orthodontist did not inform him that the appliance may dislocate teeth, plaintiff filed a complaint alleging that the treating orthodontist provided insufficient information to permit him to make an informed decision to proceed with the recommended treatment. Presented for the Supreme Court's review was the "vexing and recurring" issue of whether an affidavit of merit submitted by a plaintiff in an action alleging negligence by a licensed professional satisfied the requirements of the Affidavit of Merit statute (AOM statute). The trial court conducted a "Ferreira" conference and determined that plaintiff submitted a timely affidavit of merit; however, the court dismissed with prejudice plaintiff's complaint because plaintiff submitted the affidavit from a dentist who specialized in prosthodontics and the treatment of sleep apnea. The court stated that plaintiff knew that the dentist who treated him was an orthodontist and that the statute required submission of an affidavit of merit from a like-qualified dentist. In other words, the court determined that plaintiff was required to submit an affidavit of merit from an orthodontist rather than an affidavit from a board-certified prosthodontist who had specialized in the treatment of sleep apnea for twenty years. The Supreme Court concluded after review that the affidavit of merit submitted by plaintiff satisfied the credential requirements of the AOM statute. The Court therefore reversed the judgment of the Appellate Division and remanded the matter to the trial court for further proceedings. View "Meehan v. Antonellis" 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

Meagher & Geer, PLLP (MG) represented Ryan Contracting Company (Ryan) in an action to foreclose on several mechanic’s liens. Later, represented by O’Neill & Murphy, LLP (O’Neill), Ryan brought suit against MG for legal malpractice arising out of MG’s allegedly defective filing and foreclosure of Ryan’s mechanic’s liens. The district court granted MG’s motion to dismiss on the ground that O’Neill failed to timely file expert witness affidavits. Ryan then brought suit against O’Neill for legal malpractice arising out of O’Neill’s representation of Ryan in the MG lawsuit. The district court granted summary judgment for O’Neill, concluding that the mechanic’s liens were not perfected, not because of MG’s conduct, but because of Ryan’s error in not filing the pre-lien notice to the property owner required by Minn. Stat. 514.011. The court of appeals reversed in part, concluding that Ryan was exempt from the pre-lien notice requirement under section 514.011, and there were genuine issues of fact regarding the other issues. The Supreme Court affirmed as modified, holding that the court of appeals did not err in concluding that Ryan was not required to give pre-lien notice to enforce its mechanic’s liens. View "Ryan Contracting Co. v. O’Neill & Murphy, LLP" on Justia Law

After a jury trial, Stephen Arny, M.D., was convicted of conspiracy to distribute and unlawfully dispense prescription pain medications, 21 U.S.C. 841(a)(1) and 846. Approximately three months later, but before sentencing, Arny secured new counsel, who later moved for a new trial based on trial counsel’s constitutionally ineffective assistance. The district court granted the motion based on its finding that Arny’s Sixth Amendment right to counsel had been violated by counsel’s misrepresentation that the government had stated that another doctor (Saxman) who had worked with Arny and his co-defendants either had a plea deal or would be indicted soon and that her clinic was searched; counsel’s failure to interview Saxman or call her to testify in order to explain the legitimacy of her treatment plans that Arny continued; and counsel’s failure to investigate or interview any of Arny’s patients. The Sixth Circuit affirmed. The affidavits of Saxman and the former patients establish a “reasonable probability that, but for [trial] counsel’s unprofessional errors, the result of the proceeding would have been different.” View "United States v. Arny" on Justia Law

In 2009 the Centers for Medicare and Medicaid Services (CMS) suspected that Dr. Melgen, a Florida-based ophthalmologist​, had overbilled Medicare for $8.9 million by engaging in “multi-dosing.” Before CMS began formal proceedings, U.S. Senator Menendez (New Jersey) began to advocate on behalf of the doctor. In 2015, a 22-count indictment charged that Menendez solicited and accepted numerous gifts from Melgen; used the power of his office to influence the CMS enforcement action and to encourage the State Department and U.S. Customs to intervene on Melgen’s behalf in a multimillion dollar contract dispute with the Dominican Republic. The Third Circuit affirmed denial of motions to dismiss the Indictment, finding that the senator is not protected from prosecution under the Speech or Debate Clause, U.S. Const. art. I, section 6, cl. 1, which states that Members of Congress “shall not be questioned in any other Place” for “any Speech or Debate in either House.” The charged actions were not protected "legislative acts." The court rejected a separation of powers challenge to the Ethics in Government Act, 5 U.S.C. app. 4, 101-11; 18 U.S.C. 1001, and noted the Supreme Court’s statement “that Members [of Congress] are not to be ‘super-citizens’ immune from criminal liability or process.” View "United States v. Menendez" on Justia Law

Dr. Stephanie Taylor appealed Vermont Medical Practice Board decision denying her request to vacate the provisions of a 2005 consent order in which she agreed to a “final and irrevocable” surrender of her medical license. Dr. Taylor contended the Board erroneously: (1) failed to determine whether there were “less restrictive means available to regulate [her] conduct”; (2) violated her right to due process by “shift[ing] the burden onto [her] . . . to guess at the Board’s requirements for reinstatement;” (3) relied on the specification of charges that led to the earlier consent order; and (4) considered a Massachusetts decision revoking her medical license in that state. Finding no reversible error, the Vermont Supreme Court affirmed. View "In re Stephanie H. Taylor, M.D." on Justia Law

After his medical license was revoked, petitioner sought a writ of administrative mandamus to set aside the Board's decision. The trial court denied the writ. Petitioner does not dispute the ALJ's findings that he committed numerous acts of dishonesty in 2007 with respect to his employment status and disability insurance benefits. The court concluded that the revocation of petitioner's license to practice medicine was excessive and an abuse of discretion where the revocation was unnecessary to protect the public and contrary to the goal of making him "a better physician." The court's conclusion is supported by the ALJ's statements during the hearing and in his written findings that indicate the discipline was imposed for the improper purpose of punishing petitioner. Accordingly, the court granted the petition. View "Pirouzian v. Super. Ct." on Justia Law