Professional Liability Matters

LATEST INSIGHTS

April 30, 2015 • Employment Practices Liability, Professional Liability Matters

Supreme Court Clarifies EEOC Conciliation Process

A growing concern of late among employers has been the often heavy-handed tactics of the EEOC with respect to its statutory obligations to pursue pre-suit conciliation processes. Though the EEOC is required by Title VII of the Civil Rights Act of 1964 to attempt settlement negotiations between an employer and the allegedly wronged employee prior to suing for a judicial intervention, many employers felt that the EEOC has been overly aggressive with its pre-suit tactics. The end result for these employers has been a rise in avoidable, costly, and occasionally reputation-damaging litigation.

April 29, 2015 • Defenses, Professional Liability Matters

Case Dismissed due to Untimely AOM

Readers of PL Matters know that most states now require some form of affidavit of merit in professional malpractice claims. (Check out our handy Table for a state-by-state compendium.) In certain jurisdictions, the AOM is a prerequisite for malpractice lawsuits, as failure to timely file can result in dismissal and possibly another malpractice suit. It is the rare case where there is a justifiable excuse for not timely filing an AOM, and the following case is no exception.

April 27, 2015 • Privileges, Professional Liability Matters

Are Communications with Experts Privileged? Maybe

In general, the attorney-client privilege protects confidential communications between an attorney and her client when made for the purpose of obtaining or providing legal advice. The AC privilege applies not only to individual clients, but also to corporations. In the case of corporations, courts have held that the AC privilege may extend to third parties hired by legal counsel when necessary for the effective consultation between the attorney and the corporate client. However, the “agent of attorney” exception to the privilege is not unlimited, and may lead to the unintended discovery of information when used for an improper purpose.

April 24, 2015 • Ethics, Legal Malpractice, Professional Liability Matters

Use of Ethics Investigation in Legal Malpractice Suit

Ethics violations and legal malpractice are two distinct realms that often intersect. There are often unsettled lines between professional responsibility and professional liability and, accordingly, between attorney disciplinary systems and the civil justice system. Clients expect and deserve accountability, not only for professional negligence but also for their attorneys’ conduct. So what happens when a client initiates an ethics investigation, but also initiates a legal malpractice action? Can information from the former come into play in the latter?

April 22, 2015 • Employment Practices Liability, Professional Liability Matters

Proposed Regs on Employer Wellness Programs

The vast majority of large employers offer some sort of wellness program, according to a recent survey. We’ve posted about the risks and benefits of these programs in the past. Now, more than ever, employers with such programs should take note. The EEOC recently issued its highly anticipated proposed regulations amending how the ADA applies to these increasingly popular programs. The proposed rule is designed to provide guidance on the extent to which the ADA permits employers to use incentives to encourage employees to participate in wellness programs. The proposed regulations identify employee health programs, define the nature of a voluntary program, clarify the permissible incentives an employer may offer, and explain the notice and confidentiality requirements.

April 16, 2015 • Defenses, Legal Malpractice, Professional Liability Matters

Malpractice Suit Dismissed due to Speculative Damages

A threshold requirement for any legal malpractice claim is proof of actual harm. A party bringing a legal malpractice action has the burden of proving that but for the alleged negligence, he would have been successful in the underlying matter. Plaintiff’s failure to prove actual harm is often a defense in malpractice cases and in some situations can result in a complete dismissal. Take for example, the following case in which a Pennsylvania federal judge granted defendant attorneys’ motion for judgment on the pleadings where plaintiff’s alleged damages in his legal malpractice claim were “impermissibly speculative.”

April 14, 2015 • Law Practice Management, Professional Liability Matters

Less is More: Lengthy Pleadings Draw Judicial Ire

Federal rules require plaintiffs in a civil action to submit a short and plain statement of the claim showing that she is entitled to relief. Nevertheless, attorneys often feel compelled to develop their arguments through protracted complaints, and to support their claims with copious exhibits. In complex cases, thorough pleadings may be necessary to sustain a claim. However, in the majority of cases, such extensive pleading may produce irrelevant and redundant content that violates court rules and ultimately detracts from the issues at hand.

April 10, 2015 • Defenses, Medical Malpractice, Professional Liability Matters

No Defense of Informed Consent in PA

Informed consent is a critical aspect of the medical profession, and often can provide a defense in med-mal cases. The Pennsylvania Supreme Court, however, recently limited the defense. In Brady v. Urbas, the court held that unless there is an allegation of lack of informed consent, the fact “that a patient affirmatively consented to treatment after being informed of the risks of that treatment is generally irrelevant to a cause of action sounding in medical negligence.” The ruling upholds the Superior Court’s holding that a trial judge improperly admitted into evidence consent forms signed by the plaintiff prior to surgery.

April 8, 2015 • Defenses, Legal Malpractice, Professional Liability Matters

Court Clarifies Anti-SLAPP Defense in Malpractice Claims

Strategic Lawsuits Against Public Participation, or SLAPPs, are designed to chill free speech by targeting individuals who speak out on issues of public interest. SLAPP plaintiffs generally do not intend to win on the merits of the lawsuit, but instead seek to harass critics by forcing them to incur legal fees in defending frivolous claims. Consequently, many states have enacted anti-SLAPP statutes to protect petition and free speech rights. These statutes protect statements made before a government body or in a public forum in connection with an issue of public interest from legal liability. Attorneys facing lawsuits for statements made on behalf of a client in a judicial proceeding have looked to anti-SLAPP statutes to provide protection for claims arising from those statements.

April 7, 2015 • Experts, Professional Liability Matters

Choose Your Experts Carefully

Most, if not all, malpractice claims require expert testimony. Thus, those of us who defend professionals are often called upon to retain an appropriate expert to assist in the defense. The reverse is also true: claims against professionals usually require an expert within the defendant’s field who is prepared to testify that the professional breached the applicable standard of care. Whether it be karma, failure to read PL Matters, or otherwise, an attorney in Iowa recently learned this lesson the hard way when a malpractice claim he pursued on behalf of a plaintiff, turned into a malpractice claim against him for failing to secure the right expert.