Legal Developments and Risk Management Tips Impacting the Professional Liability Community.
Many jurisdictions require some version of an affidavit of merit (AOM) in order to proceed with a malpractice claim. (Here’s a helpful 50-state survey of AOM requirements LINK). In New York, CPLR Section 3012-a requires an AOM to accompany the complaint for all medical malpractice actions. Specifically, this affidavit has to declare that an attorney …
Case management is such an important task for litigators. We must plan how best to utilize the allotted and often limited time provided for each case. Some courts set strict case management deadlines while others permit the parties to proceed at their own pace without much direction. We must budget our time in an efficient and reasonable manner. We must also balance our personal commitments with the needs of our clients and that is no easy task. Ultimately, all attorneys have faced scheduling conflicts due to personal commitments: vacations, appointments, and family obligations. What about the birth of a child? The Florida Supreme Court recently considered, and rejected, whether to adapt a policy to stay litigation during an attorney’s parental leave.
Data is everywhere. We’re being tracked in the car, in the grocery store, even when we’re walking the dog. As I write this, I’m being monitored as well, through employee monitoring administered by my firm’s I.T. department. This may help to prevent cyber-crime, as well as assisting with productive, employee locating and resources usage. Reportedly, effective employee monitoring systems can help productivity and therefore benefit the bottom line. However, it can also create problems with the employment environment. This is an important balance for all employers: to effectively monitor employee activity in a trusting and comfortable manner.
It’s hot outside. The rising temperature has implications for employers, specifically the responsibility to monitor employee health. The ramifications of heat related employment issues span from loss of productivity and morale issues to injuries and even death. From a strict legal standpoint, OSHA has regulations governing occupational heat exposure. Moreover, there are risk management tools to consider for all employees exposed to extreme heat.
When facing a wrongful termination/retaliation claim, the organization and detail of an employer’s files will be put to the test. In a recent decision, an employer maintained well-documented, detailed files which helped to prove that a termination was not retaliatory. In Lacey v. Norac, Inc., the Eighth Circuit Court of Appeals affirmed summary judgment to an employer in a retaliation claim under Title VII based on allegations that the employee was terminated for refusing to sign an affidavit on the employer’s behalf.
Attorneys know with a certainty that words matter in the law. But what about emojis? Reportedly, more emojis are showing up in court cases throughout the US. Thus, attorneys are left to argue about the interpretation of those characters and, apparently, courts are struggling to handle the nuances.
The settle-and-sue legal malpractice claim has been traditionally disfavored by courts across the country. Courts often cite to practical and legal concerns with the theory, to say nothing of the bind it puts on an attorney looking to resolve a case. In a recent decision from the New Jersey Appellate Division, settle-and-sue may not have been at issue, but that in itself causes some concern in a case remanded for trial to determine the difference between a verdict and what the plaintiff settled for prior to trial.
The Trump administration’s immigration policies are reportedly impacting immigrants who are involved in the long-term care (“LTC”) workforce. Specifically, the policies could make it harder to find workers for these jobs. According to a study published by Health Affairs, immigrants make up nearly one quarter of the LTC workforce, in a profession which struggles to retain labor. Immigrants make up 23.5 percent of the long-term care workforce, which includes family caregivers. Twelve percent of these immigrants are naturalized citizens, eight percent are legal non-citizens, and 3.7 percent are undocumented immigrants.
In June 2019, the Illinois State Legislature passed a bill to address nursing home staffing by vastly increasing funding for struggling long-term care facilities. Under the law, the 2020 fiscal year budget increases nursing home providers’ budgets by $240 million to be shared equally by the State and Federal governments, with $70 million allocated to assist facilities to meet staffing requirements. Arguably, there is a direct correlation between staffing and incidents that may give rise to litigation. Financial and staffing components often directly factor into the quality of care residents receive, and legislative action such as that undertaken by Illinois is critical to improve the care long-term care facilities provide.
The Ohio Board of Professional Conduct recently issued an advisory opinion concerning restrictions on an attorney’s right to practice and solicit clients contained within settlement agreements. Of course, an effective settlement agreement attempts to eliminate all claims involving the settling parties. The goal is to put an end to the dispute, forever. But, what happens when a settlement agreement expressly prohibits the settling parties’ counsel from pursuing similar claims through other clients?