Legal Developments and Risk Management Tips Impacting the Professional Liability Community.
On August 13, 2018, New York State Governor Andrew M. Cuomo signed an anti-hazing bill targeting student hazing at higher education institutions. The bill amends the New York Penal Code and prohibits certain physical contact as well as the physical activity requirements traditionally found in many student organizations’ initiation ceremonies, and which frequently result in serious injury, and sometimes in fatalities.
Unlike most licensed professions, the practice of law can significantly restrict an attorney’s geographic mobility. If an attorney wishes to move to another state, it typically requires at least one year of planning before the move is possible. This may include studying for and successfully taking the new state’s bar examination, re-taking the Multistate Professional Responsibility Exam, and going through another character and fitness review. However, the Uniform Bar Examination is now used in the majority of states and there appears to be significant momentum toward a more relaxed approach to attorney licensing. While a recent decision by the Ohio Board of Commissioners on Character and Fitness may appear to be a halt on this new trend, it will likely also serve as one of UBE proponents’ key examples of an arguably archaic system that must be changed.
The customer isn’t necessarily always right. Neither is a patient. In Gardner v. CLC of Pascagoula, LLC, the Fifth Circuit Court analyzed an employer’s alleged failure to respond to a complaint of inappropriate actions of a patient in an assistant living facility. The allegations are unsettling. Plaintiff worked as a Nursing Assistant with the responsibility of caring for patients including one suffering from dementia, who had a long history of violent and sexual behavior toward fellow patients and staff. While being cared for by Plaintiff, the patient repeatedly grabbed her private areas and asked for explicit sexual acts. This was a daily occurrence. Allegedly, Plaintiff’s complaints to her employer were effectively ignored.
Often, case law relating to insurance agent/broker E&O typically involves the procurement of property/casualty insurance or the handling of property/casualty claims. However, there have been some recent developments relating to the duties and responsibilities of life insurance agents/brokers that are important to note.
The increase in connectivity has greatly improved an attorney’s ability to represent her clients. From searching a party on social media, to quickly parsing through online materials, saves hours and hours of time. Furthermore, attorneys can leverage professional organization memberships to seek input from thousands of other practitioners on legal questions or strategic decisions. Thus, an attorney can investigate deeper than ever before and easily liaise with other practitioners. But, this cuts both ways. Attorneys must be aware that technological advances also mean that her own clients and experts are vulnerable, and they must take steps to protect confidential information as necessary.
July 4 is not the ideal time to consider insurance but for too many it is a reality. By way of a reminder, after voting for independence on July 2, 1776, in the midst of the American Revolution, Congress turned its attention to the Declaration of Independence. The document was a statement explaining this decision, which had been prepared by a committee led by Thomas Jefferson. Congress debated and revised the wording of the Declaration, finally approving it on July 4, 1776. The following year, Americans celebrated their independence with fireworks and the tradition continues today. Let’s celebrate our Nation’s birthday safely. Reportedly, there are more than $35 million in fire damages every July 4. On average, about 7 fireworks related deaths are reported each year (along with 20,000 injuries per year from BBQ grill accidents!). As we reflect on and enjoy the holiday, be smart and stay safe. Happy 4th of July from your friends at Professional Liability Matters.
It is no secret that parties more often settle than proceed through trial. While courts roundly applaud this as beneficial to both the system and litigants, it sometimes generates second guessing from the clients. As Larry David put it, “a good compromise is when both parties are dissatisfied.” It is therefore no surprise that many legal malpractice claims follow from settlements, despite the general principle that the settlement itself precludes such a suit. In a recent decision from the New Jersey Appellate Division, the court’s discussion of when this principle applies does little to pacify concerns of attorneys that their clients will settle and sue. Even well documented settlement agreements, and testimony reflecting a voluntary resolution, still can be undone via a malpractice complaint.
The risk of a malpractice claim is real. That’s the bad news. But, now that we have your attention, the good news is that insurance is available to defend and indemnify professionals who face malpractice claims. In order to receive coverage, however, professionals generally must disclose whether they are the subject of any potential claims when completing their applications. If an insurer discovers that a professional had knowledge of a potential claim, but failed to disclose it, it could rely upon the nondisclosure as a basis to disclaim coverage.
Employees should feel safe at work. But not everyone is that fortunate, including an assistant manager at a Burger King who was attacked at gunpoint when attempting to make a bank deposit on behalf of his employer. He allegedly suffered from PTSD and depression. Burger King denied his request for an accommodation by changing his work schedule prompting an interesting decision.
The smoking gun. That key piece of evidence that will conclusively prove your client’s case and guarantee victory may be out there. Truly dispositive evidence is rare, given that most cases turn on a series of events, an application of the law or several facts, as opposed to one document or one line of testimony. But what if you discover that key fact which is harmful to your own claim? It may be tempting to quickly settle the case without disclosing the smoking gun. Not so fast. A recent decision from the Western District of Pennsylvania has taken issue with that response from counsel for the plaintiff, and awarded sanctions for the failure to quickly dismiss the complaint.