Showing 18 posts in Professional Liability.

The Death of Impartiality - "Dr. Death," Reptilian Tactics, and Fighting Juror Bias


This summer saw the release of Dr. Death, a crime miniseries telling the “true story” dramatization of neurosurgeon Dr. Christopher Duntsch – who is currently serving a life sentence in the Texas Department of Criminal Justice prison system for paralyzing one of his patients during a spinal surgery. In three years of practice as a neurosurgeon, Duntsch gained a reputation for arrogance and gross negligence in the operating room, eventually leading to the suspension of his medical license only after he had caused serious and permanent harm to dozens of patients. Overarching the series is the core question of how a doctor like Duntsch could continue to practice for so long? The writers point the finger at a few different targets, from Texas tort reform legislation that purportedly left Duntsch’s patients powerless to for-profit medical institutions that allegedly tried to quiet word of his misconduct for their own gain. Ultimately, the series pushes the theme that our medical system is immoral and broken – even ending with the ominous warning “this will happen again” – but for lawyers defending medical professionals the series offers a different warning – one of reptilian tactics and unfair bias against medical professionals. More »

Malpractice Mayhem: An Insurer's Standing to Sue Counsel Retained to Defend Its Insured


Recently, the Florida Supreme Court opined on the ability of an Insurer to bring suit against counsel it hired to defend its Insured and affirmed that an Insurer has not only the right, but the standing to do so, in certain circumstances.

In the matter of Arch Insurance Company v. Kubicki Draper, LLP, SC19-673, the Florida Supreme Court reviewed and heard argument as to why Arch should or should not be allowed to sue Kubicki Draper for malpractice after Kubicki Draper represented and settled a suit for one of Arch’s insureds. In Arch, the trial court and Fourth District Court of Appeal both found that Arch did not have standing to sue Kubicki Draper as it was not in privity of contract with the firm; however, the Fourth District Court of Appeal certified the following question of great public importance: Whether an Insurer has Standing to Maintain a Malpractice Action Against Counsel Hired to Represent the Insured Where the Insurer has a Duty to Defend. More »

Michigan Tenant's Successful Use of Frustration of Purpose Doctrine to Avoid Paying Rent to Landlord During the Pandemic

On April 7, 2021, in United States District Court for the Eastern District of Michigan lawsuit Bay City Reality, LLC v. Mattress Firm, Inc., 20-CV-11498, Mattress Firm, Inc., a commercial tenant (“Tenant”), successfully relied on the common law defense of Frustration of Purpose to defeat Bay City Realty, LLC’s (“Landlord”) breach of contract lawsuit after Tenant admittedly refused to pay monthly base rent to Landlord for April and May 2020 while Tenant could not open to the public due to Governor Whitmer’s prior Executive Orders. More »

Immunity From Liability For Healthcare Facilities and Healthcare Professionals in the Continuing Battle Against the Covid-19 Pandemic


Since the beginning of the COVID-19 pandemic in March 2020, local, state and federal authorities have sought out ways to address the many issues presented by the pandemic. One such issue is how to address the legal issues facing healthcare workers, who place themselves at risk of contracting the disease every day, and whether these workers and medical facilities should be shielded from criminal or civil liability based on difficult treatment decisions.

As the number of COVID-19 patients continues to rise in the US and worldwide, hospitals and doctors are faced with the decision of how to allocate scarce resources, such as ICU beds, ventilators, and time spent by staff treating an individual patient. An example of one such allocation decision is whether a healthcare worker should administer CPR for a patient who is crashing. More »

The Application of the Doctrine of Collateral Estoppel to Bar Legal Malpractice Claims Following Allegations of Ineffective Assistance of Counsel


In a recent unpublished decision, Miles v. Dickstein, unpub op, Docket No. 350136 (Sep. 10, 2020), the Michigan Court of Appeals addressed the application of the doctrine of collateral estoppel (sometimes referred to as “issue preclusion”) in a legal malpractice case arising out of an underlying criminal lawsuit. The Miles Court held that because the standards for evaluating an attorney for ineffective assistance of counsel in a criminal setting and legal malpractice in a civil suit were “equivalent” and “virtually identical,” that collateral estoppel bars a subsequent legal malpractice claim if the trial court evaluated an ineffective counsel claim in the underlying criminal matter. Miles, unpub op, at 1. More »

PROFESSIONAL LIABILITY CLIENT ALERT: Pennsylvania Mulls Repeal of Medical Malpractice Venue Restrictions; Both Plaintiff and Defense Bars Claim Victory From Study


On February 3, 2020, the Pennsylvania Legislative Budget and Finance Committee (“LBFC”) released its findings from a study of the impact of venue restrictions on medical malpractice cases. The LBFC warned that changes to the medical malpractice rules could lead to initial uncertainty in the malpractice insurance market, but also found no clear link between relaxed medical malpractice restrictions and the availability of affordable healthcare. This ruling left both the plaintiff bar and defense bar claiming an initial victory in the ongoing debate over proposed changes to Pennsylvania’s forum-shopping restrictions in medical malpractice cases. More »



The Fair Debt Collection Practices Act (“FDCPA”) was enacted to protect consumers from abusive and deceptive practices by debt collectors, and to protect non-abusive debt collectors from competitive disadvantage. United States v. Nat'l Fin. Servs., Inc., 98 F.3d 131, 135 (4th Cir. 1996). It is “a strict liability statute that prohibits false or deceptive representations in collecting a debt, as well as certain abusive debt collection practices.” McLean v. Ray, 488 Fed. Appx. 677, 682 (4th Cir. 2012). In addition to its prohibitions, the FDCPA delineates a number of required disclosures and procedures that must be followed when communicating with debtors. Attorneys and law firms who regularly engage in debt collection activities are subject to the requirements of the FDCPA. More »

PROFESSIONAL LIABILITY CLIENT ALERT: The Development of Michigan's Attorney Judgment Rule

The Michigan Court of Appeals, in a recent unpublished decision, Ali, et. al. v. Trivax, et. al., unpub op, Docket No. 343140 (March 21, 2019), clarified the scope of Michigan’s “Attorney Judgment Rule,” which can bar a client from suing his/her attorney in a legal malpractice lawsuit.  The Ali Court held that the Attorney Judgment Rule did not protect an attorney-defendant’s error in judgment when that tactical decision was not “well founded in law” adding that the question of whether the attorney-defendant qualifies for protection under the Attorney Judgment Rule is a question of fact for the jury and not the trial court (which significantly complicates relying on the Attorney Judgment Rule as a basis for summary disposition).  Ali, unpub op, at 6.   More »

An Examination of the Illinois Insurer-Insured Privilege: What is Protected and What is Discoverable?


In today’s litigation climate, cases often not only involve a plaintiff, a defendant, and their attorneys, but also insurance carriers who have vested interests in the outcome of cases involving their insured. Prior to and throughout the course of litigation, an insured will often not only communicate with their attorney, but also with their insurer. It is common, for example, that an insurer will take a statement from their insured while analyzing a potential claim. The threshold question of which components of an insurance claim file are discoverable is crucial in a litigated matter. This Article explores the Illinois Insurer-Insured Privilege. A misunderstanding of this privilege can have severe consequences, including the disclosure of material information that the parties believed, in good faith, was confidential, and would never be subject to production. More »

PROFESSIONAL LIABILITY CLIENT ALERT: Opioid Litigation - The Practitioner's Guide to Managing the FDA's 2019 Roadmap


On February 26, 2019, FDA Commissioner Scott Gottlieb released a press announcement detailing the FDA’s efforts in combating the opioid crisis. The FDA holds a guarded belief that the opioid crisis is improving but that significant changes to FDA rules and regulations are still needed to resolve the epidemic. While Gottlieb’s statement  considered the FDA’s efforts to curb illicit opioid proliferation, it also discussed the FDA’s plans for new regulations for medical professionals meant to further reduce and limit the use opioids in the U.S. The press announcement included a roadmap for the FDA’s 2019 regulatory plans  which could have substantial implications for medical professionals defending against opioid litigation. This Article analyzes some of the FDA’s proposed changes that could have the greatest impact on opioid litigation and how medical practitioners can prepare for opioid litigation in Illinois in the wake of these regulatory changes. (For more on how medical professionals can prepare for and protect against future opioid litigation and liability, please see Medical Professionals and Opioid Lawsuits: Protecting Against the Coming Storm.) More »

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