Professional Liability Matters
|LTC Risk Management Tool: Hip Protectors
Hip fractures are one of the most-common orthopedic injuries sustained by plaintiffs in long-term and elder care cases arising from falls. Long-term care ("LTC") facilities must endeavor to reduce fall-induced hip fractures through care-based interventions to optimize patient care, limit litigation, and decrease stress upon the health care system. The Journal of the American Medical Directors Association recently published a study, entitled "Effectiveness of Hip Protectors to Reduce Risk for Hip Fracture from Falls in Long-Term Care," which addresses the hip protector as an intervention to decrease hip fracture risk. The study concluded that LTC residents could anticipate a threefold decrease of the risk of sustaining a hip fracture if they wore a hip protector at the time of a fall.
POSTED DECEMBER 09, 2019 2:35 PM
|Missed Deadlines, No Communication Equals Disbarment
Deadlines are a way of life for most professionals, certainly attorneys. The practice of law involves tons of deadlines, many of which are subject to some form of extension, but an attorney must take active steps to either meet each deadline or see to it that the deadline is adjusted. An attorney's obligation of competency and communication require that counsel meet each deadline and inform her client when something goes wrong. In a recent disciplinary proceeding, an attorney was disbarred for failing to competently represent his client, failing to communicate, and then failing to participate in the disciplinary process.
POSTED DECEMBER 02, 2019 3:54 PM
|When Does an Occurrence Occur? Malicious Prosecution & Coverage
In this era of sophisticated DNA testing, exonerations of incarcerated individuals have become increasingly commonplace. The ensuing malicious prosecution lawsuits have justifiably resulted in high verdicts and settlements. The key issue for many municipalities is whether and under which policies of insurance is coverage triggered for these malicious prosecution claims. On November 21, 2019, the Supreme Court of Illinois, in Sanders v. Illinois Union Insurance Company, definitively determined that claims of malicious prosecution trigger coverage only under policies of insurance in effect on the date on which the prosecution was instituted, not on the date of exoneration, joining the majority of jurisdictions to so hold.
POSTED NOVEMBER 25, 2019 3:03 PM
|Engagement Letter Defense Rejected
We often write about the importance of engagement letters, in fact we have an entire sub-category devoted to engagement letter defenses. That's because the engagement letter is the first line of defense. A letter that clarifies the accountant's obligations, scope of duties, identity of the client, billing terms and other key clauses is generally a must for most engagements. Accountants may also opt to include exculpatory language such as limitation of liability provisions, damages caps, or other contractual language which may aid in the defense of a lawsuit. Yet, according to a recent decision, the clause was not enforceable because it was not explicit and clear.
POSTED NOVEMBER 11, 2019 3:03 PM
|No Coverage for the Guilty
We know this, but many of our clients don't: coverage is tricky. There are aspects of an insurance contract which may cut against instincts and societal expectations. For example, there are coverage implications when an insured apologizes for a perceived mistake. Anything that potentially jeopardizes the defense, including anything that can be perceived as an admission of liability, may result in a coverage denial. Along those lines, a recent decision highlights the coverage implications of a guilty plea in criminal proceedings.
POSTED NOVEMBER 04, 2019 3:06 PM
|Duty to Defend Wire Fraud
In Quality Sausage Company, LLC, et al v. Twin City Fire Ins. Co., Civil Action No. 17cv111 (S.D. Texas, Sept. 18, 2019), one of the plaintiff corporations (Plaintiff) fell victim to a fraudster who submitted fraudulent wiring instructions via email to Plaintiff on behalf of one of Plaintiff's clients. Per those wire instructions, Plaintiff improperly transferred $1 million from the client’s account to the account of a sham company. Uh oh.
POSTED OCTOBER 28, 2019 2:20 PM
|New AOM Notices in NJ
Over the years, we've shared a bunch of posts regarding the nuances of Affidavit of Merit (AOM) requirements in professional malpractice actions. Of course, many states have enacted some version of an AOM requirement and we've discussed the significance and potential advantages from a defense perspective when a plaintiff fails to comply. By strict rule of law, the failure to timely submit an AOM should signal dismissal, but does it in practice? Does it seem like courts are a bit too lenient in permitting a malpractice claim to proceed despite a violation of the AOM requirements?
POSTED OCTOBER 14, 2019 2:26 PM
|AOMs and Nursing Home Litigation in NY
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 §3012-a requires an AOM to accompany the complaint for all medical malpractice actions. Specifically, this affidavit has to declare that an attorney has reviewed the facts of the case, and has consulted with at least one physician, and that there is a reasonable basis for the commencement of the action. This requirement ensures that there is at least some legitimate basis for proceeding this the lawsuit, and can serve to reduce frivolous litigation.
POSTED OCTOBER 07, 2019 1:38 PM
|Parental Leave Continuance Policy Rejected
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.
POSTED SEPTEMBER 16, 2019 2:47 PM
|Virtual Big Brother: Monitoring Employees
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.
POSTED SEPTEMBER 09, 2019 3:17 PM