Professional Liability to Strangers

Professionals owe their clients a duty to exercise the care, diligence, and skill expected of others in their profession in similar circumstances. Generally, the professional-client relationship defines the scope of this duty of care. However, in certain circumstances, the professional’s duty may extend to third parties, even complete strangers to the professional relationship. This is where things get tricky.
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Case Dismissed due to Untimely AOM

Readers of PL Matters know that most states now require some form of affidavit of merit in professional malpractice claims. (Check out our handy Table for a state-by-state compendium.) In certain jurisdictions, the AOM is a prerequisite for malpractice lawsuits, as failure to timely file can result in dismissal and possibly another malpractice suit. It is the rare case where there is a justifiable excuse for not timely filing an AOM, and the following case is no exception.
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Malpractice Suit Dismissed due to Speculative Damages

A threshold requirement for any legal malpractice claim is proof of actual harm. A party bringing a legal malpractice action has the burden of proving that but for the alleged negligence, he would have been successful in the underlying matter. Plaintiff’s failure to prove actual harm is often a defense in malpractice cases and in some situations can result in a complete dismissal. Take for example, the following case in which a Pennsylvania federal judge granted defendant attorneys’ motion for judgment on the pleadings where plaintiff’s alleged damages in his legal malpractice claim were “impermissibly speculative.”
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No Defense of Informed Consent in PA

Informed consent is a critical aspect of the medical profession, and often can provide a defense in med-mal cases. The Pennsylvania Supreme Court, however, recently limited the defense. In Brady v. Urbas, the court held that unless there is an allegation of lack of informed consent, the fact “that a patient affirmatively consented to treatment after being informed of the risks of that treatment is generally irrelevant to a cause of action sounding in medical negligence.” The ruling upholds the Superior Court's holding that a trial judge improperly admitted into evidence consent forms signed by the plaintiff prior to surgery.
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Court Clarifies Anti-SLAPP Defense in Malpractice Claims

Strategic Lawsuits Against Public Participation, or SLAPPs, are designed to chill free speech by targeting individuals who speak out on issues of public interest. SLAPP plaintiffs generally do not intend to win on the merits of the lawsuit, but instead seek to harass critics by forcing them to incur legal fees in defending frivolous claims. Consequently, many states have enacted anti-SLAPP statutes to protect petition and free speech rights. These statutes protect statements made before a government body or in a public forum in connection with an issue of public interest from legal liability. Attorneys facing lawsuits for statements made on behalf of a client in a judicial proceeding have looked to anti-SLAPP statutes to provide protection for claims arising from those statements.
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