Justia Professional Malpractice & Ethics Opinion Summaries

Powell was adjudicated a disabled adult due to severe mental disabilities in 1997. His parents, Perry and Leona, were appointed as co-guardians of Powell’s person, but were not appointed as guardians of his estate. In 1999, Perry died following surgery. Leona engaged the Wunsch law firm to bring a claim against the doctors and hospital, Leona was appointed special administratrix of Perry’s estate. Wunsch filed a complaint under the Wrongful Death Act on behalf of Leona individually and as administratrix estate. The estate’s only asset was the lawsuit. A 2005 settlement, after attorney fees and costs, amounted to $15,000, which was distributed equally between Leona, Emma (the couple’s daughter) and Powell. The settlement order provided that Powell’s share was to be paid to Leona on Powell’s behalf. Leona placed both shares into a joint account. The probate court was not notified. Wunsch had referred the action to attorney Webb, for continued litigation. Emma waived her rights under a second settlement, Leona and Powell each received $118,000. A check was deposited into the joint account. The order did not provide that Powell’s was to be administered under supervision of the probate court and Powell did not have a guardian of his estate. Wunsch purportedly advised that it was “too much trouble” to go through the probate court for funds every time Leona needed money for Powell. In 2008, Emma petitioned to remove Leona as guardian of Powell’s person. The probate court appointed Emma as guardian of Powell’s person and the public guardian as guardian of his estate. Leona had withdrawn all but $26,000 and provided no accounting. The public guardian sued the attorneys and Leona. The trial court dismissed as to the attorneys, finding that the complaint failed to sufficiently allege defendants owed Powell a duty and to allege proximate cause. The appellate court determined that an attorney retained by a special administrator of an estate to bring a wrongful death action for the benefit of the surviving spouse and next of kin owed a fiduciary duty to those beneficiaries and remanded, with respect to the second settlement. The Illinois Supreme Court affirmed.View "In re the Estate of Powell" on Justia Law

Attorney Stilp represented Miller in claims concerning the construction of Miller’s house by contractor Herman. The district court dismissed. Stilp recommended that Miller terminate the action based on state law. Miller told Stilp that needed time to consider whether to refile., Herman filed a Chapter 7 bankruptcy petition. Herman’s bankruptcy attorney, Jones, prepared schedules listing the addresses of all creditors. Miller was listed as a creditor on the bankruptcy schedules and creditor matrix, but his address was listed as “c/o Thomas Stilp, Attorney” at Stilp’s office address. Notice of the bankruptcy was delivered to Stilp’s office but was routed to another attorney. Neither Stilp nor Miller was informed of the notice. Miller subsequently informed Stilp that he wanted to refile his complaint against Herman. Stilp then discovered that Herman had filed for bankruptcy protection. Miller did not take immediate action and, about a month later, the bankruptcy court entered a discharge order. About 13 months after he learned of Herman’s bankruptcy petition, Miller moved to reopen the case (11 U.S.C. 727(a)(4)(A)). The bankruptcy court denied the motion. The district court and Seventh Circuit affirmed, finding that Miller had been properly served when notice was delivered to Stilp’s firm.View "Miller v. Herman" on Justia Law

Wade Tucker and Wendell Cook Testamentary Trust, on behalf of shareholders of HealthSouth Corporation brought a shareholder-derivative action against Ernst & Young, LLP ("E&Y"), asserting claims of "audit malpractice" based on E&Y's failure to discover and, if discovered, to report accounting fraud. The "audit malpractice" claims included various claims of negligence, breach of contract, and fraud. The action was referred to arbitration, and an arbitration award was entered in favor of E&Y. HealthSouth filed a motion in the Circuit Court seeking to vacate the award. The circuit court denied the motion to vacate and entered a final judgment in favor of E&Y based on the award. HealthSouth appeals. Finding no reversible error, the Supreme Court affirmed. View "Tucker v. Ernst & Young LLP " on Justia Law

Following the death of their father in an accident in which the van he was driving struck a retaining wall, Appellees retained a law firm and attorneys (collectively, Appellants) to pursue a wrongful death action against the company charged with maintaining the van. The circuit court dismissed the suit after the defendant successfully excluded two of the plaintiffs' expert witnesses. Two years later, Appellees filed a professional negligence action against Appellants. The trial court granted Appellants' motion for summary judgment, finding that Appellees were not in privity with Appellants and thus lacked standing to sue for professional negligence. The court of appeals reversed, concluding (1) there was a material factual issue in dispute as to whether Appellees were represented by Appellants or were led to believe they were being represented by them, and (2) even if there was no privity, the children were owed professional duties because they were the intended beneficiaries of the underlying wrongful death action. The Supreme Court affirmed, holding (1) there were issues of material fact regarding the attorney-client relationship; and (2) the attorneys owed duties to the children, who were real parties in interest to the wrongful death action.View "Pete v. Anderson" on Justia Law

Appellant Cynthia Holmes, M.D. appealed a circuit court's grant of a directed verdict on her malpractice claim in favor of respondents Haynsworth, Sinkler & Boyd, P.A., Manton Grier, and James Becker, and award of sanctions against her. Appellant, an ophthalmologist, was previously a member of the consulting medical staff of Tenet HealthSystem Medical, Incorporated, d/b/a East Cooper Community Hospital, Inc. In 1997, appellant lost her privileges to admit patients and perform procedures at the Hospital. Appellant hired respondents to represent her in a legal action against the Hospital in 1998. Respondents pursued an unsuccessful appeal for reinstatement of full admitting privileges through the Hospital's administrative process. In 1999, Respondents filed a lawsuit in federal court on Appellant's behalf. As a result of that suit, the federal district court granted a temporary injunction reinstating Appellant's admitting privileges based, in part, on Appellant's averments in an affidavit that her patients needed urgent surgeries and her inability to perform surgery at the hospital was causing her to lose patients. However, because Appellant did not perform a single surgery in the wake of the temporary injunction, the district court dissolved the injunction in 2000, because "the alleged harm suffered by [Appellant's] current patients had not materialized." Appellant blamed Respondents for the dissolution of the injunction, claiming that Respondents did not act with due diligence on her behalf because she disputed their fees and refused to pay her legal bills. Respondents, however, attributed the dissolution of the injunction to Appellant's failure to utilize the injunction to perform surgery while it was in place and her lack of cooperation during discovery. On January 31, 2000, Appellant filed a pro se motion requesting the district court reconsider the dissolution of the preliminary injunction. In this motion, she also indicated she was dissatisfied with Respondents' representation and was critical of how Respondents had handled her case to that point and sought additional time to obtain substitute counsel and complete discovery. Because Appellant still refused to pay her legal bills, Respondents filed a motion to be relieved as counsel. A few months later, the district court granted summary judgment in the Hospital's favor, and dismissed the pendant state law claims without prejudice. After Respondents and Appellant ended their professional relationship, Appellant sought the return of the $43,000 in attorney's fees she paid pursuant to an addendum to their fee agreement. Respondents refused, and subsequently Appellant filed a Complaint alleging professional malpractice in handling her federal antitrust claims. Finding no reversible error, the Supreme Court affirmed the trial court's judgment. View "Holmes v. Haynsworth, Sinkler & Boyd" on Justia Law

The Gallia County (Ohio) Public Defender Commission contracted with the non-profit Corporation for defense attorneys to represent indigent criminal defendants. The Corporation hired Bright, who represented R.G. before Evans, the county’s only trial judge. Bright negotiated a plea agreement, but R.G. hesitated during the plea colloquy. “Mere seconds” later, R.G. informed Bright and Evans that he would take the deal after all. Evans refused. Bright and the prosecutor met with Evans to convince the judge to accept R.G.’s plea. He refused. In pleadings, Bright criticized Evans’s policies as “an abuse of discretion,” “unreasonable,” “arbitrary … unconscionable.” Bright’s language did not include profanity and did not claim ethical impropriety. Evans subsequently contacted the Office of Disciplinary Counsel and filed a grievance against Bright and filed a public journal entry stating that Bright’s motion, although not amounting to misconduct or contempt, had created a conflict. He ordered that Bright be removed from the R.G. case. He then filed entries removing Bright from 70 other felony cases. The Corporation terminated Bright’s employment, allegedly without a hearing or other due process. Bright sued Evans, the Board, the Corporation, and the Commission. The district court concluded that Evans was “not entitled to absolute judicial immunity because his actions were completely outside of his jurisdiction.” The court held that Bright failed to sufficiently plead that the Board or the Commission retaliated against him for exercising his constitutional rights or that liability attached under the Monell doctrine, then dismissed claims against the Corporation. The Sixth Circuit reversed with respect to Evans. While Evans’s conduct was worthy of censure, it does not fit within any exception to absolute judicial immunity. The court affirmed dismissal of claims against the Board and Corporation; the First Amendment offers no protection to an attorney for his speech in court.View "Bright v. Gallia Cnty." on Justia Law

In the underlying action, Plaintiff filed a personal injury action against Defendants, the State, and a volunteer driver for the Iowa Department of Human Services. The Supreme Court held that Defendants were entitled to summary judgment under the statute of limitations and the volunteer-immunity provisions of the Iowa Tort Claims Act. Plaintiff subsequently filed this malpractice action against her attorney (Attorney) in the underlying case. The jury returned a verdict finding Attorney was negligent and that his negligence caused damage to Plaintiff. The Supreme Court affirmed on appeal and reversed on cross-appeal, holding (1) the driver's volunteer immunity did not preclude the State's respondeat superior liability for Attorney's negligence, and therefore, Plaintiff's legal malpractice claim against Attorney did not fail because she could have recovered in the underlying case had the claim been timely filed; (2) Attorney could not reduce the malpractice-damage award by the contingent fee he would have taken if the underlying action had been successful because he did not earn the fee and because Plaintiff must pay new counsel who prosecuted the malpractice action; and (3) Plaintiff was entitled to interest running from the date by which her underlying action should have been tried, absent Attorney's negligence.View "Hook v. Trevino" on Justia Law

Real parties in interest in this case were the owners and developers (collectively, P&R) and the general contractor (PCS) of a construction site in Las Vegas. Petitioner, an architecture firm, designed a housing project at the site. After a fatal automobile accident occurred at the site, Plaintiffs and/or their estates filed complaints against P&R, PCS, and Petitioner. Petitioner and Plaintiffs settled, and the district court determined the settlement was made in good faith. P&R subsequently filed a third-party complaint against Petitioner for breach of contract, professional negligence, and express indemnity, among other claims. Petitioner moved to dismiss the complaint on the ground that they were barred as "de facto" contribution and/or equitable indemnity claims. The district court granted the motion in part and dismissed P&R's claim for professional negligence. Petitioner then filed this petition for a writ of mandamus. The Supreme Court granted the petition and directed the district court to dismiss P&R's remaining third-party claims against Petitioner, holding (1) Nev. Rev. Stat. 17.245(1)(b) bars all claims that seek contribution and/or equitable indemnity when the settlement is determined to be in good faith; and (2) P&R's remaining third-party claims here were "de facto" contribution claims and were thus barred by section 17.245(1)(b). View "Otak Nev., LLC v. Eighth Judicial Dist. Court" on Justia Law

Petitioner was a licensed physical therapist and the owner of a therapy center that operated two facilities. The West Virginia Board of Physical Therapy revoked Petitioner's license for failure to properly supervise physical therapist assistants and physical therapy aides employed by him. The circuit court affirmed. The Supreme Court affirmed in part and reversed in part, holding (1) the circuit court properly found that Petitioner failed to directly supervise a physical therapy aide who was performing patient treatment; but (2) the circuit court erred in finding that Petitioner failed appropriately to supervise a physical therapist assistant who was performing patient treatment. Remanded.View "Sorongon v. W. Va. Bd. of Physical Therapy" on Justia Law

Inmate Santiago, complaining of severe pain and a rash, was seen by Dr.Mosher on January 31. Mosher prescribed Tylenol for pain and antibiotics to treat what she thought might be Methicillin-resistant Staphylococcus aureus (MRSA). The next day Dr. Ringle diagnosed erythema nodosum (EN), an uncomfortable but non-dangerous skin inflammation that typically disappears in about six weeks but may recur. EN has no known cure. Ringle prescribed an anti-inflammatory and an antibiotic. Four days later, Santiago was transferred to OSU Medical Center, where he was diagnosed with EN and arthralgias, a severe joint-pain condition, and prescribed an anti-ulcer agent and a different anti-inflammatory. Santiago was seen on February 20 by an OSU dermatologist, who recommended a topical steroid, compression hose, and SSKI, which may help treat EN but is not standard treatment. Each day, February 22- 25, Santiago asked prison nursing staff about the treatments. Staff denied knowledge until, on the 25th, nurses found Santiago’s unsigned chart on Ringle’s desk. Ringle had been on vacation. Mosher signed the order on February 27. Santiago received the topical steroid on February 29 and compression stockings on March 10. Santiago waited longer for the SSKI, which is a non-formulary drug. The district court rejected Santiago’s suit (42 U.S.C. 1983) based on the delays. The Sixth Circuit affirmed. Santiago did not prove that the delay caused a serious medical need or deliberate indifference.View "Santiago v. Ringle" on Justia Law