Legal Malpractice
Florida
Clients cannot be comparatively negligent in relying upon the attorney's erroneous advice:
"A client cannot be found to be comparatively negligent for relying on an attorney's erroneous legal advice or for failing to correct errors of the attorney which involve the exercise of professional expertise. See Becker v. Port Dock Four, Inc.,752 P. 2d 1235, 1239 (Or. App. Ct. 1988); Theobald v. Byers, 13 Cal. Rptr. 864, 866-67 (Cal. 1st DCA 1961). Here, Former Wife relied on the Firm's representation that she could still bring her claims on the promissory notes even if she signed the settlement agreement. Simply because she was somewhat sophisticated in business matters does not impose upon her the burden to second guess her attorney's advice or to hire a second attorney to see if such advice was proper. The reason the Firm was hired was for their legal expertise and superior knowledge of the legal implications that the signing of the marital settlement agreement would entail. Thus, we find that the trial court erred in failing to direct a verdict in favor of Former Wife on the issue of comparative negligence. See Becker, 752 P.2d at 1239; Theobald, 13 Cal. Rptr. at 866-67." Tarleton v. Arnstein & Lehr, 719 So.2d 325, 331, 23 Fla. L. Weekly D1920 (4th DCA 1998)
Maryland
Courts recognize claims against attorneys for negligent settlement advice:
Maryland's highest court, the Court of Appeals, recognized this cause of action in Thomas v. Bethea, 351 Md. 513, 529, 535, 718 A.2d 1187, 1198 (1998). The Court emphasized that there is a line of divide between a mere difference in opinion as to the range and likelihood of results in a case, on the one hand, and negligent advice on settlement, which is advice that no reasonable attorney, properly aware of the facts and the law, would provide to the client. The Court cited with approval, 351 Md. at 525, one of the national founding precedents in this line of decision, Ziegelheim v. Apollo, 128 N.J. 250, 607 A.2d 1298, 1304 (1992), where the New Jersey court pointedly stated:
"[W]e insist that the lawyers of our state advise clients with respect to settlement with the same skill, knowledge, and diligence with which they pursue all other legal tasks. Attorneys are supposed to know the likelihood of success for the types of cases they handle and they are supposed to know the range of possible awards in those cases...After all, the negotiation of settlements is one of the most basic and most frequently undertaken tasks that lawyers perform."
Model Rules of Professional Responsibility
Billing partner's duty to supervise handling partner's work:
Indiana has ruled that a partner who signs a pleading with another partner owes a duty to supervise his colleague even though that colleague has undertaken all responsibility in the case. In re Anonymous, Ind., No. 49S00-9910-DI-607 (issuing a private reprimand) (the ABA-BNA write up on the case states that the partner's signing of the pleading triggered the duty to monitor (even thought the reprimanded partner had also signed the retainer agreement). The court interpreted Model Rule 5.1(c) (2) (partner knows of a partner's violation of the rules and can take steps to remedy and/or mitigate the adverse consequences of that partner's actions).
Medical Malpractice
Florida
Defense lawyers barred from private contact with plaintiff's treating doctors
Sometimes the lawyer for the defendant doctor will try and talk with the plaintiff's treating doctors on the q.t. An appellate court in Florida has recently ruled to bar these private contacts. In this case, Figaro v. Bacon-Green, 734 So. 2d 579, 580, 24 Fla. L. Weekly D1408 (3rd DCA 1999) the court based its ruling on Section 455.667(5), Florida Statutes, requiring confidentiality of patient records unless in response to a subpoena and ruled that the trial judge committed error when the trial judge denied the plaintiff's motion to prohibit ex parte contact by the defense lawyer with the plaintiff's treating physicians. West Virginia reached the same conclusion, based on common law principles of the trust the patient places in his physician, State of West Virginia ex. Rel. Joan B. Kitzmiller v. Honorable John L. Henning, Judge of Randolph County Circuit Court, 437 S.E.2d 452 (W. Va. 1993).
Maryland
Ghost surgery
Maryland has upheld the cause of action for ghost surgery as within the patient's rights to informed consent from the physician in whose surgical hands she has consented to perform the procedure. When the surgeon substitutes another doctor, the surgeon violates the patient's consent. The plaintiff must demonstrate the clarity of the undertaking by the specific surgeon to personally perform the surgery. Dingle v. Belin, 2000 WL 365660 (Md.), rev'g, 127 Md. App. 68, 732 A.2d 301 (1999) (April 11, 2000) (subject to revision).
Other Interesting Decisions
Informed Consent: Caesarean Section
Schreiber v. Physicians Insurance Company of Wisconsin, 223 Wis.2d 417, 588 N.W.2d 26 (1999). This decision holds that during a patient's course of labor, the patient continues to exercise the right to informed consent. In Wisconsin, a statute specifically stated: "[a]ny physician who treats a patient shall inform the patient about the availability of all alternate, viable medical modes of treatment and about the benefits and risks of those treatments." This statute thus protected not only the patient's right to information, but also the patient's right to choose an alternative and medically acceptable mode of treatment throughout the course of treatment. Thus, throughout the course of her labor, the patient is free to withdraw her consent to vaginal delivery where caesarean section remained a viable medical alternative. When the doctor did not honor the patient's reasonable medical request, the doctor violated her rights by refusing to perform the caesarean section she had timely requested during her course of labor.