Professional Liability Defense Federation

Expert Foundation Statute Ruled Unconstitutional

cjensen — Fri, 17 Feb 2012 03:10:14 +0000

On January 19, 2012 the Arkansas Supreme Court ruled in Broussard v. St. Edward Mercy Health System, Inc., 2012 Ark. 14, 2012 WL 149761 (2012) that a statute requiring experts in medical malpractice cases to be of the same specialty as the defendant was unconstitutional. Ark. Code section 16-114-206(a) provided that plaintiff must prove a standard of care violation by an expert “medical care provider of the same specialty as the defendant.” Plaintiff/Appellant argued that the statute created a procedural rule, and that only the supreme court – not the legislature – can create procedural rules. The supreme court agreed, holding the statute violated the separation of powers doctrine and was void.

James J. Wrynn Joins Goldberg Segalla LLP

cjensen — Mon, 13 Feb 2012 00:29:43 +0000

The law firm of Goldberg Segalla, LLP has announced that the 40th Superintendent of Insurance of the State of New York James J. Wrynn will join the firm as a partner on March 5, 2012. A graduate of St. John’s University School of Law, Mr. Wrynn will bring his national and international insurance regulatory experience to the firm’s Global Insurance Services Practices Group in New York, NY.

D&O Coverage Opinion Addresses Key Provisions

admin — Sun, 27 Nov 2011 18:11:17 +0000

Endurance American Specialty Co. v. Lance-Kashian & Co., Case No. CV F 10-1284 (E.D. Cal., November 8, 2011) addressed key D&O coverage provisions involving defense cost allocation in insured and uninsured party contexts. The policy provided that if a matter included insured and uninsured claims/parties, the policyholder and insurer would use best efforts to negotiate a defense cost allocation. It also stated the insurer would not seek an allocation as long as a covered claim remained, and that the insurer’s defense cost reasonableness determination would bind the policyholder. A claim involved insured parties and an affiliated – but uninsured – party. The policyholder offered little response to the insurer’s entreaties re cost allocation, deeming them a “distraction” for later negotiation. The insurer thereupon imposed allocation and cost reasonableness determinations, and refused to pay any sum in defense of the uninsured party. The court upheld the insurer’s decisions finding the policyholder failed at allocation “best efforts”, and refusing to pay toward the uninsured party’s defense even though covered matters remained in the claim. It interpreted the policy provision as meaning it would pay 100% of a covered party’s defense to covered and non-covered claims, but not for the defense of a non-covered party. Finally it upheld the provision giving the insurer sole authority to determine cost reasonableness, given the policyholder’s sophistication and ability to negotiate policy terms.

Recent Medical Malpractice Evidence Opinions

admin — Tue, 15 Nov 2011 14:43:17 +0000

Two recent federal court opinions address evidentiary issues of interest. In Laskowski v. Dep’t of Veterans Affairs, 2011WL5040953 (M.D. Penn. October 24, 2011), a patient sought by in limine motion to restrict defense access to psychotherapy records after a certain date. Denying the motion the court ruled that the psychotherapist-patient privilege is analogous to the attorney-client privilege; it is waived by pursuit of a malpractice claim. The court also noted the basis for the patient’s motion was substantive in nature and in limine motions are inappropriate for resolving substantive issues. In Maillaro v. New York Presbyterian Hospital, 2011WL4860027 (D.N.J. October 12, 2011) the patient sought access to another patient’s medical records. They shared a hospital room together, and the plaintiff claimed his staphylococcus aureus infection may have been caused by the roommate. In a thorough analysis the magistrate judge denied the request in view of the overriding need to assure confidentiality of health care records held by those not in litigation.

PLDQ Article Archive

admin — Sat, 13 Aug 2011 19:25:46 +0000

1. Nicole France Stanton and Natalie G. Maciolek authored their article “Professionals Beware: The Ubiquity of Fiduciary Duty Claims” in the Spring 2011 issue of Professional Liability Defense Quarterly.
2. Nisha P. Byers and Jackie S. Cooper wrote their article “Peer Review Privileges” appearing in the Spring 2011 issue of Professional Liability Defense Quarterly.
3. Karen L. Tucci published her article “Don’t Go Overboard: Limited Use of the Captain of the Ship Doctrine” appearing in the Spring 2011 issue of Professional Liability Defense Quarterly.
4. Michael J. Khouri and Douglas C. Stastny wrote their article “When Malpractice Becomes Manslaughter, or Worse” appearing in the Winter 2011 Issue of Professional Liability Defense Quarterly.
5. Peter Akmajian and Janet Linton published their article “The Case For and Against the ‘Case-Within-the-Case’ ” appearing in the Winter 2011 issue of Professional Liability Defense Quarterly.
6. Julie Jeffords Moose and Audra M. Byrd published their article “Defining and Limiting Accountants’ Liability to Third Parties” in the Fall 2010 issue of Professional Liability Defense Quarterly.
7. Thomas D. Jensen wrote “Insurance Producer E&O Liability to Insureds” in the Fall 2010 issue of Professional Liability Defense Quarterly.
8. Joshua D. Shaw authored “The Effect of Release on Vicarious Liability in the Physician/Hospital Context” appearing in the Summer 2010 issue of Professional Liability Defense Quarterly.
9. Derek M. Daniels and Starlett M. Miller published their article “The Broad Extension of Hospital Liability” in the Spring 2010 issue of Professional Liability Defense Quarterly.
10. The article entitled “Design Professional E&O: Survey of Developments” appears in the Spring 2010 issue of Professional Liability Defense Quarterly.
11. Articles entitled “Realtor E&O: Decade in Review” and “An e-Discovery Primer” appear in the Winter 2010 issue of Professional Liability Defense Quarterly.
12. Articles entitled “Discovery and Admissibility of Plaintiff’s ‘Fault’ in Investment Loss Litigation” and “Chiropractic Malpractice: The Defense Template” appear in the Fall 2009 issue of Professional Liability Defense Quarterly.

Minnesota Court Approves Negligent Procurement of Insurance Claim

TJensen — Sat, 13 Aug 2011 18:44:16 +0000

In Graff v. Robert M. Swendra Agency, Inc., 800 N.W.2d 112 (Minn., July 13, 2011) the Minnesota Supreme Court in a 5-2 ruling recognized a cause of action against an agent for negligent failure to procure insurance coverage for a policyholder. The agent recommended that the policyholder purchase an umbrella endorsement that would extend UIM coverage to the umbrella policy limit. The policyholder agreed. The primary and umbrella coverages were purchased, but the agent neglected to extend the umbrella policy to the UIM coverage. The policyholder sustained serious injuries in an MVA. The majority held both the insurer and agent could be separately liable, writing that a negligent procurement claim “is consistent with the well-established, common-law rule that an agent is subject to liability for harm caused by the agent’s negligence.” (Footnote 4) The dissent contended the new cause of action was inconsistent with the existing rule that the agent’s error is binding on the insurer, thus making the insurer solely liable for the loss.

Featured One

admin — Fri, 01 Jul 2011 15:38:35 +0000

Res Judicata No Bar to Suit v. Counsel for Client Fraud

admin — Thu, 26 May 2011 16:56:36 +0000

In a case contrary to the weight of authority, the Minnesota Supreme Court ruled on January 5, 2011 that a lawyer was not in privity with his client and therefore the res judicata doctrine did not bar the adverse party’s suit against the lawyer after she obtained a judgment against his client for fraud. In Rucker v. Schmidt, 2011 WL 13760 (Minn., January 5, 2011) the husband in a dissolution action falsified the value of his corporation. The parties agreed to a property split and the divorce was finalized. Later the ex-wife discovered the fraud and sued the ex-husband. The case settled. Then the ex-wife sued the ex-husband’s counsel for fraud. The trial court dismissed the claim on grounds counsel was in privity with the client and thus res judicata barred the claim. In a 2-1 decision the appeals court reversed, and then the supreme court affirmed. Relying upon the Restatement (First) of Judgments (1942) and American Jurisprudence (1958) the court held that counsel was not so identified in interest with his client that the relationship represented the same legal right. Therefore privity was not established and the case was remanded for trial.

Washington Court Holds Malpractice Statute Does Not Bar Abuse Reporting Claim

admin — Thu, 26 May 2011 16:54:38 +0000

In the en banc decision of Beggs v. State, 2011WL543817 (Wash., February 17, 2011), the Washington Supreme Court ruled that the state’s medical malpractice statute did not shield doctors from a claim under the child abuse reporting statute. Rejecting the weight of authority, the court found an implied cause of action under the abuse reporting statute, holding that the claim did not involve health care subject to the limits of the malpractice statute.

No Certificate of Merit Required in Informed Consent Claims

admin — Tue, 10 May 2011 18:02:14 +0000

On March 15, 2011, the Connecticut Supreme Court ruled in a dental malpractice case (Shortell v. Cavanagh, ___ A.3d ___, 2011WL799763), that filing a certificate of merit with the complaint is unnecessary with respect to the lack of informed consent claim. Reversing the lower court, the supreme court ruled that an informed consent claim does not relate to diagnosis, treatment, or the exercise of professional judgment, i.e., the standard of care. Rather, it is determined by the lay standard of materiality within the judgment of the jury without expert opinion testimony.