Legal Developments and Risk Management Tips Impacting the Professional Liability Community.
Federal authorities recently commenced an investigation targeting a global financial services firm’s alleged practice of hiring the children of powerful Chinese officials, often through a program that used lower hiring standards for those with elite pedigrees, to help the firm win lucrative business in China. The investigation provides an excellent backdrop to discuss the risks associated with nepotism in the workplace.
Most employers understand the significant consequences of sexual harassment at the workplace and take proactive measures to train employees about proper conduct. However, liability is not limited to the conduct of employees. Employers also have a responsibility to prevent sexual harassment by third parties such as clients, vendors, patients, and customers, when the employer knows about the conduct and fails to take any corrective action. Although third-party harassment is reportedly just as common, many employers do not take appropriate steps to prevent it.
Many states do not permit the assignment of legal malpractice claims. This anti-assignment rule is based on the well-rooted policy that legal malpractice claims are uniquely personal and therefore cannot be assigned. Since malpractice claims typically involve the nature of the attorney’s duty to the client and the confidentiality of the attorney-client relationship, the theory goes that malpractice claims should not be subject to assignment out of fear of creating a “market” for these claims to the highest bidder. A recent decision suggests that there may be at least one exception to this rule.
Those with conflicting political views may still agree that many questions remain unanswered regarding the implementation of the Affordable Care Act, a/k/a “Obamacare.” The US Supreme Court recently agreed to address at least one of those lingering questions when it granted certiorari to hear Sebelius v. Hobby Lobby Stores. The issue in Hobby Lobby is whether an employer may be subject to fines under the ACA for failing to provide health insurance coverage that includes the provision of birth control to employees. The plaintiff claims that this provision in the Act impermissibly conflicts with its religious views.
Featured headlines in this edition of Professional Liability Monthly: No Breach of Fiduciary Duty Where the Plaintiff Alleged That the Defendant Insurance Agency Procured an Inadequate Policy Disclosure of Medical Records From Patients Other Than the Plaintiff Denied by Court Improper Reference to Smoking History in Medical Malpractice Case Leads to New Trial Expert Gastroenterologist Should Have …
The below cases correspond with the December edition of Professional Liability Monthly and the analysis of each case. Click here for access to the newsletter. Cases are provided courtesy of LexisNexis. BECK & BECK, LLC v. COSTELLO LYKES V. YATES MICHAUD V. HAUSER SEVEN BRIDGES FOUND v. WILSON AGENCY SUTCH V. ROXBOROUGH MEM’L HOSPITAL WARD V. RAMSEY
As 3-D printing continues to grow in popularity, PL Matters wonders how this technology will impact the professional malpractice community. Now 3-D users may bring any virtual object to life by directing it to a specialized printer that prints in layers of rubber, plastic, paper or other materials. Once cost-prohibitive and mainly utilized by the medical field (to create prosthetics), the machines are now available to the public for personal and commercial use. But as the machines are more readily available, what happens when the end-product causes harm or injury?
Sitting down to dinner but still have a long to-do list from the office? Hear your work e-mails pinging as you watch the game? Not a problem that you can’t handle with your smartphone or tablet. Whatever your take on this 24/7 connectivity, it is undeniable that the proliferation of mobile devices has made working away from the office easier and perhaps expected by employers (and clients). While such a policy may result in an increase in productivity, it can also create a legal risk for employers, namely, unexpected claims for overtime pay.
Generally an attorney only owes a duty of care to her client. Thus, a predicate to a meritorious legal malpractice action is the existence of an attorney-client relationship. But, identifying this relationship and determining to whom that duty extends is not simple. A recent decision demonstrates that an attorney may be exposed to malpractice based on the expectations of non-clients.
Professional liability insurance policies cover professionals for claims arising within the agreed upon policy period. At first blush this appears to be a relatively simple concept but there is plenty of room for confusion which can result in a lack of coverage. What is a claim? The fact that a lawsuit was filed within a policy period does not necessarily mean that the “claim” giving rise to the lawsuit is covered under a PL policy. A perfect example of this issue was presented to the court earlier this month in Regency Title Co. v. Westchester Fire Ins., (E.D. Tex. Nov. 15, 2013) during which the USDC for the Eastern District of Texas considered the date on which a claim arises for purposes of triggering coverage.