Justia Professional Malpractice & Ethics Opinion Summaries

Dr. Dubnow, a board-certified physician with more than 40 years of experience, was Chief of the Emergency Department at Lovell Federal Health Care Center (FHCC). In 2017, he diverted an ambulance transporting an infant to Lake Forest Hospital, located a few minutes away from the FHCC. Lake Forest has a Level-II trauma center and is staffed with pediatric specialists. The child was pronounced dead upon arriving at Lake Forest. The FHCC, a VA hospital, investigated Dubnow’s diversion decision. This investigation eventually resulted in his removal. A review board concluded that none of the grounds for his removal were supported but the final reviewing authority reversed the review board’s decision. The district court affirmed the VA’s removal decision.The Seventh Circuit vacated the removal. The VA failed to properly apply the deferential “clearly contrary to the evidence” standard when reviewing the board’s decision to overturn Dubnow’s removal; the decision was arbitrary. The relevant question was whether the diversion was appropriate; if so, Dubnow’s removal could not be sustained. To conclude that treating the patient at the FHCC was possible, or even appropriate, is not to conclude that diverting the ambulance to a better-equipped hospital was inappropriate. A “conclusion that there was ‘no need’ to divert the patient is two steps removed from the analysis” under 38 U.S.C. 7462(d). View "Dubnow v. McDonough" on Justia Law

At issue in this post-conviction case was petitioner Steve Franke’s attempt to prove that his criminal trial counsel provided constitutionally inadequate and ineffective assistance by failing to object that an expert diagnosis of child sexual abuse was inadmissible in the absence of corroborating physical evidence. Although the objection would have been contrary to controlling Court of Appeals precedent at the time of petitioner’s 2001 criminal trial, the Oregon Supreme Court later held that the rules of evidence required exclusion of a diagnosis of sexual abuse if it was not based on physical evidence, effectively overruling the Court of Appeals precedent. To survive summary judgment, petitioner offered evidence that some criminal defense attorneys in 2001 viewed the Court of Appeals precedent as vulnerable, were raising the kind of challenge to sexual abuse diagnoses that ultimately succeeded, and were recommending that practice to other criminal defense attorneys. Petitioner contended the evidence would have allowed him to establish that the exercise of reasonable skill and judgment obligated his attorney to raise a similar objection, or at least that his attorney’s failure to raise the argument was the product of a failure to adequately prepare and familiarize himself with the state of the law. Both the post-conviction court and the Court of Appeals held that petitioner’s claim failed as a matter of law. The Supreme Court agreed with the Court of Appeals that the argument that ultimately succeeded in Southard was not so obviously correct in 2001 that the exercise of reasonable skill obligated attorneys to raise the argument, and petitioner’s evidence did not permit a different conclusion. But the Supreme Court disagreed that petitioner’s claim could be resolved on summary judgment; the evidence created genuine issues of material fact that, if resolved in petitioner’s favor, could establish the failure by petitioner’s attorney to raise a Southard-type challenge to the sexual abuse diagnosis was the product of an unreasonable failure to investigate and familiarize himself with the state of the law to the extent appropriate to the nature and complexity of the case. Accordingly, the Supreme Court reversed the lower courts' judgments and remanded for further proceedings. View "Jackson v. Franke" on Justia Law

The Judiciary Commission of Louisiana (“the Commission”) recommended to discipline Judge Jerry L. Denton, Jr., City Court Judge of Denham Springs, Louisiana. A complaint against Judge Denton was filed by attorney Maria Finley to the Office of Special Counsel (the “OSC”). Finley was retained by Stephanie Bardeau-Marse to file a petition to intervene in a Child in Need of Care proceeding (“CINC proceeding”) in which Judge Denton presided. While the case was pending before Judge Denton, he responded and initiated improper ex parte communications with Bardeau-Marse. These improper ex parte communications precipitated other misconduct, which led to the complaint, a Notice of Hearing from the OSC to Judge Denton, and an investigation by OSC. The Louisiana Supreme Court found Judge Denton violated Canons 1, 2A, 3A(6), and specified portions of 3A(4) and 3C of the Louisiana Code of Judicial Conduct (1996), and specified portions of La. Const. art. V, section 25(C)(1974). The Court found a suspension from office without pay for four months and payment of costs incurred by the Commission for $4,676.25 was an appropriate sanction. View "In re Judge Jerry Denton, Jr." on Justia Law

Dr. Jacob Schmitz appealed a district court judgment ordering: (1) the State Board of Chiropractic Examiners to disclose a limited portion of a recording from an April 2020 executive session of the Board; (2) denying the disclosure of any portion of a May 2020 executive session; and (3) the denial of his motion for attorney’s fees. In June 2020, Dr. Schmitz commenced this lawsuit, alleging that the Board violated the law regarding access to public records and meetings. The North Dakota Supreme Court declined to address Dr. Schmitz’s allegation that his right to due process was violated by the in-camera review because it was not properly preserved; reversed the denial of attorney’s fees; and remanded for additional portions of the executive sessions to be disclosed to Dr. Schmitz and for a determination of an appropriate award of attorney’s fees. View "Schmitz v. State Board of Chiropractic Examiners" on Justia Law

The Judicial Qualifications Commission (JQC) sought approval of the discipline by consent agreement between the Director of the JQC and JaDawnya Baker, Judge of the Municipal Court of Atlanta, to resolve the formal charges brought against Judge Baker with the issuance of a public reprimand. The agreement, entered into between the JQC Director and Judge Baker, was submitted to the JQC’s Hearing Panel, which approved the agreement and filed it with the Supreme Court for approval. Because Judge Baker’s admitted violations of periodically dismissing cases without the legal authority to do so justified the recommended, and agreed-to, discipline of a public reprimand, the Court approved the agreement. The Court approved the agreement with reservations "about whether, based on the substance of the allegations within the consent agreement, all of the agreed-to violations constitute violations of the Georgia Code of Judicial Conduct." View "Inquiry concerning Judge JaDawnya Baker" on Justia Law

Burkhart, the CEO of ASC, a private company that operates Indiana nursing homes and long-term care facilities, orchestrated an extensive conspiracy exploiting the company’s operations and business relationships for personal gain. Most of the funds involved in the scheme came from Medicare and Medicaid. After other defendants pled guilty and Burkhart’s brother agreed to testify against him, Burkhart pled guilty to conspiracy to commit mail, wire, and healthcare fraud (18 U.S.C. 1349); conspiracy to violate the AntiKickback Statute (18 U.S.C. 371); and money laundering (18 U.S.C. 1956(a)(1)(B)(i)). With a Guidelines range of 121-151 months, Burkhart was sentenced to 114 months’ imprisonment.Burkhart later filed a habeas action, contending that his defense counsel, Barnes & Thornburg provided constitutionally deficient representation because the firm also represented Health and Hospital Corporation of Marion County, a victim of the fraudulent scheme. The Seventh Circuit affirmed the denial of relief. While the firm labored under an actual conflict of interest, that conflict did not adversely affect Burkhart’s representation. Nothing in the record shows that the firm improperly shaded its advice to induce Burkhart to plead guilty; the advice reflected a reasonable response to the “dire circumstances” facing Burkhart. The evidence of Burkhart’s guilt was overwhelming. View "Burkhart v. United States" on Justia Law

Pappas sued Dr. Chang for malpractice. During mediation, they agreed that Chang would pay Pappas $100,000. Both parties and their counsel signed a settlement agreement, which provided that Pappas “will execute a release of all claims ... in a more comprehensive settlement agreement ... to include a provision for mutual confidentiality as to the facts ... the terms and amount of this agreement.” The parties unsuccessfully negotiated the “more comprehensive settlement agreement” and “provision for mutual confidentiality” for months. Pappas discharged her attorney and, representing herself, advised Chang’s attorney that she would only comply with a confidentiality provision if she received $525,000, then sued Chang for breach of contract.The trial court ruled against Pappas “because she has not signed a ‘more comprehensive settlement agreement’ and release which includes a provision for mutual confidentiality.” In consolidated appeals, the court of appeal affirmed, rejecting an argument that a confidentiality provision would be against public policy and violate the Business and Professions Code. The court also rejected Chang’s appeal of the trial court’s denial of her attorney fees as costs of proof at trial (Code Civ. Proc., 2033.420) based on its finding that Pappas’s denial of two requests for admission was based on a good faith belief she would prevail at trial and that the requests went to the ultimate issue. View "Pappas v. Chang" on Justia Law

The Judicial Tenure Commission (JTC) filed a formal three-count complaint against Third Circuit Court Judge Bruce Morrow, arising from comments he made to two female prosecutors during a murder trial. An appointed master found respondent, in Counts I and II respondent had violated Canons 2(B), 3(A)(3), and 3(A)(14) of the Code of Judicial Conduct, and in Count III, the master found that respondent had violated Canons 3(A)(3) and 3(A)(14). The JTC issued a decision and recommendation for discipline in which it largely agreed with the master’s findings of fact and conclusions of law but found that respondent had also violated Canon 2(B) by his conduct in Count III. After determining that the majority of the factors set forth in In re Brown, 461 Mich 1291 (2000), weighed in favor of a more serious sanction, the JTC unanimously recommended that respondent be sanctioned with a public censure and a 12-month suspension without pay. Respondent petitioned the Michigan Supreme Court, requesting that the Court reject or modify the JTC’s recommendation. After review, the Supreme Court concluded the JTC correctly found that respondent committed misconduct in office and that public censure and suspension were appropriate. However, a 6-month rather than the JTC’s recommended 12-month suspension was proportionate. View "In Re Morrow " on Justia Law

Farnolo helped his clients file short‐form complaints in the multidistrict “Cook” litigation, involving product liability claims alleging injuries caused by Cook’s medical device—a filter designed to prevent pulmonary embolism. The case management order instructed all plaintiffs to complete a profile form with general personal and medical background information and details about their device and alleged injuries. In May 2019, the defendants notified attorney Farnolo that they did not have forms from his four clients. By late June, the forms still had not been filed. Farnolo never responded to the defendants' motion to dismiss.The district court dismissed the cases on July 19, 2019. Farnolo learned about the dismissal not by monitoring the docket, but from his client more than a year later. On August 18, 2020, he moved for reconsideration and reinstatement of the cases, claiming that he did not receive an electronic docket notification of the motion to dismiss; he attributed his delay in asking for reconsideration to his email inbox sending the dismissal order to his junk folder. The district court denied Farnolo’s motion as both untimely and meritless. The Seventh Circuit affirmed; all Rule 60(b) motions must be made within a “reasonable time” and Rule 60(c)(1) specifically requires requests for reconsideration predicated on excusable neglect to be brought within one year of entry of judgment. Inexcusable attorney negligence is not an exceptional circumstance justifying relief. View "Sides v. Cook Medical Inc." on Justia Law

Plaintiff Roger Rodrigue claimed defendant Attorney Vincent Illuzzi negligently advised plaintiff to sign a Vermont workers’ compensation settlement that contained a general release barring recovery otherwise available from the third-party who injured him. Plaintiff appealed the trial court’s dismissal of the entire original complaint for failure to state a claim, grant of summary judgment in favor of defendant on an amended legal-malpractice claim, and denial of plaintiff’s request for findings following summary judgment. Finding no reversible error, the Vermont Supreme Court affirmed. View "Rodrigue v. Illuzzi" on Justia Law