Professional Liability Matters

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July 17, 2013 • Professional Liability Matters, Risk Management

The Effective Litigation Hold Letter

Our recent post on the ramifications of destroying social media content got us thinking about the importance of an effective legal hold letter. Also known as a “preservation” or “hold” order, this document instructs an entity or individual to preserve all data that may reasonably relate to pending or anticipated litigation. A goal of the litigation hold is to suspend the normal dispositions of records and to prevent spoliation. Another goal is to avoid the potential for sanctions and ethical issues facing those who destroy relevant content. Given the importance of a legal hold, and the serious ramifications for failing to comply, all professionals must be aware of the contents of a proper legal hold.

Secret Video Exposes Expert Witness to Criminal Proceedings

A New York state judge recently provided a compelling reminder of the serious ramifications for failing to provide truthful testimony on the stand. The focus of Queens Supreme Court Justice Duane Hart’s admonition was an orthopedist routinely hired to assist in the defense of personal injury cases. When the court discovered through a hidden camera recording that the expert’s testimony was exaggerated at best – or an outright lie at worst – the court ordered a mistrial and directed his attention to potential criminal proceedings against the expert.

July 10, 2013 • Medical Malpractice, Professional Liability Matters

The Cost of an Apology: Pennsylvania Considers Apology Law

Malpractice is devastating. Professionals work tirelessly to earn a degree (or more), develop client relationships and trust, and subsequently a book of business all of which can be at risk in the event of professional negligence. The professional’s reaction may be to approach the client or patient with an apology, explanation or consolation but there are serious risks to doing so. Depending on the professional’s E&O policy, an apology may constitute a waiver of coverage. Moreover, that apology may be an admissible “confession” which can be introduced at trial. Pennsylvania legislators have considered this conundrum and introduced a bill that would preclude reference to a doctors’ apologies to patients during medical malpractice lawsuits. Practitioners believe this could greatly reduce the number of medical malpractice lawsuits in the state.

July 9, 2013 • Employment Practices Liability, Professional Liability Matters

The Floodgates have Opened: Unpaid Internship Suits on the Rise

Don’t say we didn’t warn you. Last month we discussed the first suit filed by unpaid interns against their “employers” under the Fair Labor Standards Act. Channeling our inner Miss Cleo, we suggested at the time that the decision in Glatt v. Fox Searchlight Pictures, Inc., would have far-ranging implications on the EPL community. Sure enough, the floodgates have opened for unpaid interns seeking repayment under the FLSA.

July 4, 2013 • Professional Liability Matters, Risk Management

Here’s to an Uneventful Fourth of July

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 per year in fire damages on July 4. In addition, thousands of people flood the emergency room each year from injuries associated with fireworks. As we reflect on and enjoy the holiday, be smart and stay safe. Happy 4th of July from your friends at Professional Liability Matters.

July 3, 2013 • Employment Practices Liability, Professional Liability Matters

Supreme Court Changes the Standard for Retaliation Claims

Often, it’s not the crime but the cover-up that will do you in. In some ways, that sentiment is applicable to retaliation claims for alleged discrimination in the workplace. Or at least it was, until the Supreme Court’s recent decision in University of Texas Southwestern Medical Center v. Nassar. Previously, an employer facing a discrimination suit was susceptible to a retaliation theory despite establishing legitimate reasons for the alleged discriminatory conduct (usually terminating or demoting the employee). Specifically, so long as the plaintiff could show that the desire to retaliate for the employee’s pursuit of a charge of discrimination was at least a “motivating factor” behind any adverse employment action, the employer could be held liable. Thus, the potential existed for an entirely well-intentioned employer to be held liable under this standard. Nassar addressed this potential and changed the rules.

July 2, 2013 • Legal Malpractice, Professional Liability Matters

Wanna be Starting Something? Michael Jackson’s Publicist files Legal Mal. Suit

Despite his untimely death, Michael Jackson continues to generate considerable media attention, tabloid fodder, and litigation. Most recently, Jackson’s former publicist, Raymone K. Bain, filed a malpractice suit to recover from her former attorneys. In Bain v. Gary Williams Parenti Watson & Gary PL et al., the King of Pop’s publicist alleges that her attorneys …

June 28, 2013 • Insurance Products, Professional Liability Matters, Risk Management

The Insurance “Conspiracy” Facing A-Rod and the Yankees

Alex Rodriguez is widely considered one of the greatest baseball players of his generation, but much of his career is filled with controversy. The most recent debate concerns A-Rod’s receipt of a hefty salary from the Yankees although he has not played a single game this year. Reportedly, the 12-time All Star is now grumbling that the Yankees are intent on keeping him off of the field so as to trigger insurance dollars. In December 2007, Rodriguez and the Yankees agreed to a 10-year, $275 million contract; at the time, the richest contract in baseball history. Following his underwhelming performance in the 2012 playoffs, and his off-season surgery which may not heal this year, A-Rod is reportedly questioning whether the Yankees are conspiring to keep him on the disabled list so as to trigger an insurance clause to cover his albatross-like contract.

June 27, 2013 • Professional Liability Matters, Risk Management

Is Three a Crowd? The Intersection between Attorney-Client and Spousal Privileges

The attorney-client privilege is among the oldest and most established evidentiary privileges in law. Although it is perhaps the most frequently cited privilege, it certainly is not the only grounds to object to the disclosure of a client’s communications. Spouses also enjoy a special relationship that justifies withholding certain communications. Under the so-called “spousal communications privilege,” a/k/a “marital privilege,” confidential communications between spouses may be protected from disclosure in civil and criminal cases. But what happens when the attorney-client and spousal privileges collide?