Justia Professional Malpractice & Ethics Opinion Summaries

T.L. consulted Dr. Jack Goldberg for a blood condition. In October 2010, Dr. Goldberg told T.L. about a new medication, Pegasys. After taking Pegasys, T.L. experienced a number of symptoms, but Dr. Goldberg advised that T.L. should continue taking Pegasys. T.L. began experiencing severe pain in her neck and both arms, requiring hospitalization and rehabilitation. T.L. was diagnosed with inflammation of the spinal cord and experienced partial paralysis on her right side. T.L. brought suit against Dr. Goldberg and his employer, Penn Medicine Cherry Hill. T.L. claimed that Dr. Goldberg deviated from accepted standards of care by prescribing Pegasys to her because she was diagnosed with, and took medication for, chronic depression. During Dr. Goldberg’s deposition, when asked whether he was aware of any studies in the Journal of Clinical Oncology pertaining to the use of Pegasys to treat patients with T.L.’s condition, Dr. Goldberg answered “no.” On T.L.’s motion, the court barred Dr. Goldberg from using any medical literature at trial that was not produced during the course of discovery. At trial, Dr. Goldberg testified that he prescribed Pegasys to T.L. because he relied upon a clinical trial, published in the Journal of Clinical Oncology in 2009, that included patients with a history of depression. T.L.’s counsel did not object. The jury found that Dr. Goldberg did not deviate from the applicable standard of care. T.L. was granted a new trial on grounds that Dr. Goldberg’s discussion of the 2009 publication constituted reversible error. Dr. Goldberg appealed as of right based on a dissenting justice in the Appellate Division's reversal of the trial court. The New Jersey Supreme Court reversed, finding there was no demonstration that the changed testimony caused prejudice to T.L., and the plain error standard did not compel reversal, "especially because counsel’s failure to object was likely strategic." Under the circumstances, T.L. was not entitled to a new trial. View "T.L. v. Goldberg" on Justia Law

In December 2007, the decedent had gastric bypass surgery and developed a bed sore that became infected. The Hospital discharged him four days after the procedure. In January 2008, the decedent died from complications associated with a bacterial infection. Ward's initial nine-count complaint was dismissed for failure to comply with the Code of Civil Procedure. First and second amended complaints were also dismissed. The Hospital filed its answer to a third amended complaint. Four years later, in December 2015, the judge issued a pretrial conference order. A jury trial was set for January 2016. On December 31, 2015, the Hospital moved to bar Ward’s disclosure of a rebuttal witness the day before, 20 days before the start of the trial, noting that the case had been pending for six years. Ward unsuccessfully sought leave to file a fourth amended complaint, alleging a survival claim against the Hospital under a theory of respondeat superior and a wrongful death claim against the Hospital under a theory of respondeat superior. Ward successfully moved to voluntarily dismiss the action without prejudice. In May 2016, Ward initiated another lawsuit against the Hospital, nearly identical to the proposed fourth amended complaint. The Illinois Supreme Court ruled in favor of Ward, overturning summary judgment in favor of the Hospital. None of the orders dismissing counts of the various complaints in the initial action were final. The lack of finality renders the doctrine of res judicata inapplicable. View "Ward v. Decatur Memorial Hospital" on Justia Law

In a medical negligence case, the Pennsylvania Supreme Court considered the admissibility of evidence regarding the risks and complications of a surgical procedure in a medical negligence case. Consistent with the Court's recent decision in Brady v. Urbas, 111 A.3d 1155 (Pa. 2015), the Court found that evidence of the risks and complications of a surgery may be admissible at trial. View "Mitchell. v. Shikora" on Justia Law

George BouSamra, M.D., along with his colleague, Ehab Morcos, M.D., were members of Westmoreland County Cardiology (WCC), a private cardiology practice. BouSamra and Morcos were interventional cardiologists. Westmoreland Regional Hospital was operated by Excela Health (Excela). As of 2006, approximately 90% of the interventional cardiology procedures at Westmoreland Regional Hospital were performed by WCC. As a result, most of the income Excela realized from interventional cardiology procedures at Westmoreland Regional Hospital stemmed from WCC’s procedures. In 2007, Excela acquired Latrobe Cardiology (Latrobe). Although Latrobe was a cardiology practice, it did not employ interventional cardiologists. Instead, Latrobe referred its patients requiring interventional cardiac procedures to other cardiologist groups, including WCC. Because WCC and Latrobe competed for patients, some animosity existed between the practices. In February 2010, Robert Rogalski (Rogalski) was appointed CEO of Excela, at which point he became aware of the acrimonious relationship between WCC and Latrobe. Seeking to control the market for interventional cardiology in Westmoreland County, Rogalski began negotiating with WCC intending to bring WCC into Excela’s network. The negotiations were ultimately unsuccessful, and in April 2010, WCC rejected any further negotiations. In June 2010, Excela engaged Mercer Health & Benefits, LLC (Mercer) to review whether physicians at Westmoreland Regional Hospital, including BouSamra, were performing medically unnecessary stenting. The results of the study were critical of BouSamra’s work, and concluded that he had performed medically unnecessary interventional cardiology procedures. While Mercer was completing its peer review but prior to another peer review, Excela contracted with an outside public relations consultant to assist Excela in managing the anticipated publicity stemming from the results of the peer review studies. BouSamra initiated this action seeking damages for, among other things, defamation and interference with prospective and actual contractual relations. As the matter continued through the phases of litigation, the parties disagreed as to the scope of discoverable materials. The issue raised before the Pennsylvania Supreme Court was whether Excela Health waived the attorney work product doctrine or the attorney-client privilege by forwarding an email from outside counsel to its public relations and crisis management consultant. The Court concluded the work product doctrine was not waived by disclosure unless the alleged work product was disclosed to an adversary or disclosed in a manner which significantly increased the likelihood an adversary or anticipated adversary would obtain it. This matter was remanded back to the trial court for fact finding and application of the newly articulated work product waiver analysis. View "BouSamra v. Excela Health" on Justia Law

The Supreme Court affirmed the judgment of the court of appeals concluding that Defendants' engagement of the judicial process implied that they intended to waive the requirements of Tex. Civ. Prac. & Rem. Code 150.002, which requires that a sworn certificate of merit accompany any lawsuit complaining about a licensed professional engineer's services, and remanded this case for further proceedings.Defendants were professional engineers who were sued by Plaintiffs alleging contract and tort claims. Plaintiff never filed a certificate of merit in this lawsuit. Defendants, however, did not seek dismissal until the eve of trial - 1,219 days after suit was filed. The trial court granted Defendants' motion and dismissed Plaintiffs' lawsuit with prejudice. The court of appeals reversed, holding that Defendants impliedly waived section 150.002's requirements. The Supreme Court affirmed, holding that Defendants waived the statutory right to dismissal by waiving the certificate of merit requirement through their invocation of the judicial process. View "LaLonde v. Gosnell" on Justia Law

In this legal malpractice action the Supreme Court reversed the order of the district court dismissing Appellants' claims, holding that the district court erred by finding that Appellants' claims against Respondents were time barred by Nevada's statute of limitations for legal malpractice claims.Appellants filed a complaint in Nevada's federal district court claiming legal malpractice as to Charles Damus, Esq. The federal court granted Damus' motion to dismiss. While the federal action was ongoing Appellants entered into a legal services agreement with Respondents. Appellants later filed a malpractice complaint in state court against Respondents arguing that Respondents failed to sue Damus in state court. At issue was the interplay between Nevada's litigation malpractice tolling rule and 28 U.S.C. 1367(d), a federal tolling statute, on a legal malpractice claim. The district court granted Respondents' motion to dismiss. The Supreme Court held (1) 28 U.S.C. 1367(d) tolled claims brought by Appellants only until the claims were dismissed, and therefore, the district court erred by finding that Appellants' claims against Damus were tolled until the remaining claims in the federal action were also dismissed; and (2) the litigation malpractice tolling rule did not apply to the claims against Respondents, and therefore, the district court erred by finding that Appellants' claims against Respondents were time-barred. View "Kim v. Dickinson Wright, PLLC" on Justia Law

From 2011 to 2015, Appellant Attorney Joanna Vogel represented plaintiff-respondent Angele Lasalle in the dissolution of a registered domestic partnership with Minh Tho Si Luu. Lasalle repeatedly failed to provide discovery in that case, and the court defaulted her as a terminating sanction. She said her failure to provide discovery was caused by Vogel not keeping her informed of discovery orders, so she sued Vogel for legal malpractice. A default judgment was entered against Vogel. Vogel successfully moved to set aside the default judgment pursuant to Code of Civil Procedure section 473(b). In response, LaSalle’s new lawyer asked the trial court to take judicial notice of state bar disciplinary proceedings against Vogel which stayed her ability to practice law. The set aside motion was then denied, and a year later, a default judgment was entered against Vogel for $1 million. She appealed the default and denial of her motion to set aside the default. The Court of Appeal reversed: “[w]e sympathize with the court below and opposing counsel. We have all encountered dilatory tactics and know how frustrating they can be. But we cannot see this as such a situation, and cannot countenance the way this default was taken, so we reverse the judgment.” View "Lasalle v. Vogel" on Justia Law

Francis Ruybalid committed numerous ethical violations arising out of cases that he either prosecuted or supervised while he was the District Attorney for the Colorado Third Judicial District. He argued he was entitled to the attorney’s fees and costs he incurred while defending these allegations. The counties of the Third Judicial District refused to reimburse Ruybalid for these expenses. The Colorado Supreme Court determined that because Ruybalid’s ethical violations were at times committed recklessly or knowingly, his attorney’s fees and costs were not necessarily incurred in the discharge of his official duties, therefore, he was not entitled to reimbursement for fees. View "Ruybalid v. Bd. of Cty. Comm'rs" on Justia Law

One morning in March 2011, Nixola Doan went to Fairbanks Memorial Hospital with her adult daughter, Tristana, who was coughing and having trouble breathing. Doan stayed with Tristana for much of the day. Around 7:00 p.m. Tristana’s condition worsened, and Doan was “ushered . . . out” of the room while Tristana was intubated. Doan remained in the waiting area and did not see Tristana again until approximately the time of her death at 11:41 p.m., when Doan reentered the room and saw her daughter’s body. As the personal representative of Tristana’s estate, Doan filed suit against a number of medical providers, alleging malpractice and wrongful death. Doan also brought her own claim for negligent infliction of emotional distress. Several of the defendants moved for summary judgment on the emotional distress claim, arguing it was legally untenable for Doan to understand, while Tristana was undergoing care, her caregivers were acting negligently. On appeal, the Alaska Supreme Court concluded a viable bystander claim for negligent infliction of emotional distress did not depend on the plaintiff’s contemporaneous realization that the injuries she observed were negligently caused. Therefore, the Court reversed the grant of summary judgment. View "Doan v. Banner Health, Inc." on Justia Law

in 2005, the plaintiff in this matter, Ralph Colombo, was sued by his homeowners association, Nellie Gail Ranch Owners Association (Nellie Gail), in Orange County Superior Court. In March 2007, Nellie Gail obtained a judgment and injunction preventing Colombo from continuing construction of certain improvements on his property until he obtained approval for, and completed the construction of, a single-family residence. Colombo's attorney withdrew from the case in September 2008, and Colombo began to represent himself. Colombo's request to sue his attorneys for legal malpractice was denied by the superior court, as was his motion for reconsideration of that request. The Court of Appeal denied extraordinary relief. Undaunted, the vexatious litigant asked a different presiding judge to give him leave to file the identical legal malpractice complaint. This time, his request was granted and the action at issue here was filed. The trial court granted a defense motion for judgment on the pleadings and dismissed the action. The Court of Appeal held that as a matter of both substantive legal doctrine and fundamental fairness, litigants are only entitled to "one bite at the apple. But this vexatious litigant refuses to stop biting." The Court concluded the doctrine of res judicata precludes a litigant from filing successive prefiling requests, and therefore affirmed the judgment. View "Colombo v. Kinkle, Rodiger & Spriggs" on Justia Law