Justia Professional Malpractice & Ethics Opinion Summaries

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

The Supreme Court held that Hughes v. Mahaney & Higgins, 821 S.W.2d 154 (Tex. 1991), does not continue to toll the limitations period when a co-party of a malpractice plaintiff pursues the appeal in a higher court but the malpractice plaintiff does not participate in that stage of the proceedings.In Hughes, the Supreme Court held that when an attorney commits malpractice in either the prosecution or defense of a claim that results in litigation, the statute of limitations on the malpractice claim against the attorney is tolled until all appeals on the underlying claim are exhausted. In this case, Plaintiff filed suit against Defendant for legal malpractice in the underlying proceedings. The trial court granted summary judgment in favor of Defendant on limitations grounds, and the court of appeals affirmed. The Supreme Court affirmed, holding (1) Hughes tolling applies only to all appeals in which the malpractice plaintiff participates; and (2) Plaintiff's malpractice claim was barred by limitations. View "Zive v. Sandberg" on Justia Law

The Supreme Court reversed in part the judgment of the district court in favor of Plaintiff in this medical negligence action, holding that the district court erred in how it structured periodic payments after applying the periodic-payments statute in Texas Civil Practice and Remedies Code Chapter 74, Subchapter K to Plaintiff's award of future medical expenses.Plaintiff, the mother of A.M.A., brought this action on his behalf alleging that, upon A.M.A.'s delivery, the nurses' delay in summoning the obstetrician when A.M.A.'s heartrate dropped to nondetectable levels for extended periods caused his cerebral palsy. The jury found for A.M.A.and awarded $1.208 million for future healthcare expenses after he turns eighteen. The trial judge applied the periodic payment statute to the award. The Supreme Court remanded the case, holding that the district court erred in the way that it structured the periodic payments. View "Columbia Valley Healthcare System, L.P. v. A.M.A." on Justia Law

The Supreme Court affirmed the judgment of the district court granting summary judgment in favor of Christopher Gillis and dismissing the claim brought by Lori and Robert Bogue that, as a result of negligence during a surgical procedure, Lori suffered injuries, holding that there was no error.The district court granted summary judgment in favor of Gillis on statute of limitations grounds, thus rejecting the Bogues' argument that under the continuous treatment doctrine the statute of limitations did not begin to run until the conclusion of Gillis' treatment of Lori approximately one year after the date of the surgery. The Supreme Court affirmed, holding that the district court did not err in concluding that the statute of limitations began to run on the date of the surgery. View "Bogue v. Gills" on Justia Law

The Supreme Court affirmed the decision of the district court dismissing Plaintiff's professional negligence action against several healthcare providers, holding that the district court properly dismissed the complaint on the ground that Plaintiff failed to file the certificate of merit required by Iowa Code 147.140.Plaintiff filed this action alleging professional negligence, negligent hiring, retention, or supervision of professional staff and other claims. The district court dismissed the petition under section 147.140. The Supreme Court affirmed, holding that Plaintiff exclusively alleged professional negligence claims that fell within the scope of section 147.140, and therefore, the district court correctly dismissed the complaint. View "Struck v. Mercy Health Services-Iowa Corp." on Justia Law

The Supreme Court affirmed the portion of the circuit court's order granting Respondent's motion to dismiss this Petitioners' claims asserting, inter alia, medical negligence, res ipsa loquitur, and loss of consortium, but vacated the court's decision to grant the dismissal with prejudice, holding that the court erred in dismissing the action with prejudice.At issue on appeal was whether Petitioners' failure to serve a screening certificate of merit upon Respondent before filing their complaint warranted a dismissal of Petitioners' complaint with prejudice. The Supreme Court held (1) the circuit court lacked subject matter jurisdiction to proceed in this case due to Petitioners' failure to comply with the pre-suit notice requirements of the West Virginia Medical Professional Liability Act, W. Va. Code 55-7B-6; and (2) therefore, the circuit court properly dismissed the civil action, but erred in dismissing it with prejudice. View "Tanner v. Raybuck" on Justia Law

Defendant was convicted of conspiracy and substantive health care fraud for fraudulently billing Medicare and Medicaid for millions of dollars for visits to nursing home patients that he never made. He challenged the convictions, sentence, restitution amount, and forfeiture amount on appeal.The co-conspirator pleaded guilty to conspiracy and agreed to cooperate with the government. Part of his plea agreement addressed his compensation during the conspiracy. Defendant contends that the district court erred in quashing his subpoena of the co-conspirator’s attorney. The court ruled that any erroneous exclusion of the attorney’s testimony was harmless beyond a reasonable doubt because his testimony would not have impeached the co-conspirator. He further argues that the district court erred in limiting how many character witnesses he could present. The court found that the district court did not err because defendant overstates the importance of character witness testimony in this case. He was not on trial for being uncaring or uncompassionate but for lying and billing Medicare for services he did not provide.Additionally, defendant contends that the district court improperly limited part of his counsel’s closing argument when he was discussing whether defendant had made a profit. The court found that the government does not have to prove a defendant profited to establish the elements of fraud. The court also found that the district court did not err in calculating the loss amount used to determine defendant's sentence or the amount of restitution ordered. View "USA v. Douglas Moss" on Justia Law