Legal Developments and Risk Management Tips Impacting the Professional Liability Community.
Friends of PL Matters know that maintaining malpractice insurance is a must, regardless of your profession. Clients count on professionals to get things done right. When things don’t go exactly as planned, clients get unhappy, lawsuits are filed, and malpractice insurance kicks in to protect the professional. But what if the professional lacks insurance? May the client maintain a cause of action for lack of insurance?
Reality television fans and others were saddened recently when news of a Kardashian family member’s overdose hit the news. Lamar Odom, sometime beau of Khloe Kardashian, was hospitalized after the incident, and his privacy was reportedly violated when staffers at the medical center where he was treated took pictures of him. The staffers were immediately fired due to this conduct. Lamar’s plight contains a teachable lesson for those employers who must comply with the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule, which protects the privacy of personal health information (PHI).
Obtaining malpractice insurance is an essential component of risk management for professionals. But, the obligations continue beyond the purchase. Like any contract, both sides are bound to comply with the contractual terms: the insurer and the insured. Accordingly, professionals must take the time to familiarize themselves with the scope of policy coverage and specific policy exclusions. Failure to fulfill the requirements of a policy provision could mean the loss of coverage and individual exposure.
Marijuana laws in the US are rapidly changing. Colorado, Oregon, and Washington have legalized marijuana outright for recreational use. Twenty more states and the District of Columbia have legalized the use of marijuana for medicinal purposes. Now, the Pennsylvania legislature has proposed a new law that would permit limited medical marijuana use. Despite these changes at the state level, marijuana is still classified under federal law as a Schedule I drug that has no accepted medical use. Inconsistencies between state and federal laws create potential ethics dilemmas for professionals who seek to advise clients operating in the marijuana industry. In order to assist professionals navigate this murky legal landscape, the Pennsylvania Bar Association Legal Ethics and Professional Responsibility Committee recently issued a formal ethics opinion directed to counsel who provide legal services to marijuana-related businesses.
Expert witnesses are critical in many professional malpractice cases. This is particularly true in the med-mal context where expert testimony may be necessary to help understand causation. More specifically, experts in medical malpractice cases are essential in helping the fact finder determine whether the medical professional’s actions (or inactions) were the cause of the alleged injury. Whether an expert succeeds in this task can be the difference between a win and a loss at trial and in some cases on a motion for summary judgment. Take for example the following scenario.
First recognized in 1972, the implied warranty of habitability protects building buyers and owners from latent construction defects by permitting recourse from builders and sellers. In a case of first impression, the Illinois Appellate Court recently held that this theory does not extend to the work of an architect. The decision significantly impacts the defense of design professionals in Illinois and is worth considering for all design professionals and the attorneys who defend them.
Manny and Floyd can’t stop fighting. Recently, counsel for the promoter of Boxer Manny Pacquiao, Top Rank Inc., moved for another opportunity to depose an investment firm, as part of a $100 million antitrust lawsuit against the firm and Floyd Mayweather Jr.’s manager, saying its attorneys’ “obstructionist behavior” barred proper questioning. According to Top Rank, counsel for the deponent obstructed the proceeding by instructing the witness not to answer several questions and by failing to prepare the representative for the line of questioning Top Rank advised that it tended to pursue. The result, per Top Rank, was a “sham deposition”. This dispute highlights what may happen when a party engages in misconduct during a deposition.
Professional athletes are worth a lot of money. When they are on top of their game they are capable of raking in the dough for themselves and their organizations. However, if they become injured or otherwise unable to perform a lot of money is at stake. Therefore, it’s not unusual for athletes to obtain disability insurance policies, covering them in the event of a career ending injury. In fact with respect to collegiate athletes, the NCAA even sponsors a disability insurance program, which provides protection for qualified athletes against future loss of earnings as a professional athlete, due to a disabling injury or sickness. Of course in order to make the transition from collegiate athlete to professional you must first be drafted, and that’s where loss of value insurance comes into play.
Communication is key. Defining clear objectives, limiting unreasonable expectations, and keeping the client reasonably informed of any developments in the matter at hand all go a long way to maintaining client satisfaction. However, not all professionals prioritize these relatively simple measures for successful representation. According to a recent study investigating malpractice claims against medical professionals, poor communication is a major contributor to liability actions. The study analyzed over 1800 lawsuits against doctors arising between 2007 and 2014, with a focus on the specific elements that led to patient injury.
A statement of the obvious: professional liability involves claims against professionals. What professionals? Attorneys, accountants, architects, financial advisers and others who may purchase a professional malpractice insurance policy offered by various insurers. But what about the dozens of other classes of professionals who may not have an insurance product dedicated to them? That’s where miscellaneous professional liability kicks in. Today, we’ll focus on travel agents as an example of the types of exposure facing a “miscellaneous” professional.