Professional Liability Matters

LATEST INSIGHTS

May 7, 2015 • Experts, Professional Liability Matters, Risk Management

Who is Really Writing the Expert Report?

Expert reports are a staple in many litigated matters. A good report should clearly convey the opinion and provide sound reasoning for the basis of the opinion. It is to be expected that an attorney and the expert will work together to formulate the expert opinions and ultimately to author a report. But how much input may an attorney provide? Federal Rule 26 clearly states that the expert report is to be prepared and signed by the witness. Nothing in the rule prohibits counsel from helping the witness. But, it’s not completely clear from the rule exactly what level of involvement is permissible. A recent federal case sheds some additional light on this issue.

May 6, 2015 • Professional Liability Matters, Risk Management

Drop Dead Deadlines – Impartial or Indiscriminate?

The world of litigation is rife with deadlines. Even a meritorious argument or strong case can be derailed by failure to timely file pleadings and motions. This reality was illustrated in the recent case of Connolly v. 129 East 69th St. Corp. In this slip and fall case, a defendant moved for summary judgment to dismiss plaintiff’s case, and the trial court granted the motion. On appeal, however, the decision was reversed, as the court held the motion was filed one day after the motion filing deadline.

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.