Many states have enacted some version of an “affidavit of merit” (AOM) requirement for professional malpractice claims. We’ve blogged in the past about the significance of affidavit of merit requirements, including the potential advantages from a defense perspective when a plaintiff fails to comply with the applicable state statute. Professionals involved in malpractice suits will want to take note of a recent decision by a New Jersey appeals court, which addressed the state’s affidavit of merit statute and limited affidavits of merit to the same …
Continue ReadingCategory: Risk Management
Tis the Season of Gift Giving (Policies)
Whether it’s a fruit basket from a vendor or an employee gift exchange, it’s that time of year when the approaching holidays can stir up a frenzy of gift giving in the office. Many companies find themselves struggling to define what is appropriate, fair and festive when it comes to holiday gift giving. Certainly no one wants to be a Grinch, but creating a clear gift policy ahead of time is an easy way to avoid controversy and liability. Consider the following tips when creating …
Continue ReadingParalegal Power! Appropriate Delegation = Client Satisfaction
The practice of law is changing. In particular, as a result of modern technology, attorneys’ reliance upon support staff is not what it used to be. This has impacted the role of paralegals, members of a dwindling field. Indeed, according to the 2012 Survey of Law Firm Economics, the average number of paralegals per law firm has dipped by over 30%. However, paralegals still play an important role in a law firm. If utilized effectively, paralegals have proven to be invaluable players who provide …
Continue ReadingS.O.L.: The Continuous Representation Doctrine
Statute of limitations laws are intended to protect defendants from stale and meritless claims. Moreover, these statutes pressure plaintiffs to institute supported causes of action while the evidence is ripe. Certainly, these statutes are an ally to the defense bar and can be a major obstacle for plaintiffs. A plaintiff asserting a professional malpractice claim may attempt to circumvent a time-bar defense through the continuous representation doctrine. The argument is that the continuing professional-client relationship delays the accrual of a claim. This theory was …
Continue ReadingDuties to Non-Clients: The Exception, Not the Rule
The standard malpractice claim pits former client against professional. In most scenarios, the client alleges that the professional’s conduct fell below the acceptable standard and/or below the expectations set forth in the engagement contract. On occasion, non-clients test the waters and sue professionals under various theories. However, the knee-jerk defense to claims from non-clients is usually lack of privity. Lack of privity is often a successful defense but there are exceptions to the general rule. Professionals must be aware of these exceptions and take into …
Continue ReadingKnow When to Hold ‘Em, When to Close ‘Em
Although not nearly as satisfying, in many ways closing a file is just as important to a professional as opening one. How and when to close a file is a component of best practices. Most professionals follow some document retention protocol (and if you don’t, you should). But an interesting wrinkle arises when it’s not entirely clear when the engagement has come to an end. Some cases are withdrawn, some clients sign an engagement letter but do not pursue the claim, some clients decide to …
Continue ReadingRethinking the Professional Apology
Professionals are only human. Even the most cautious professional is not immune from the occasional mistake. Whether the mistake gives rise to a claim of professional malpractice, however, will often depend not on the error that was made, but on what actions the professional took to resolve the error after it occurred. Professionals are generally reluctant to admit responsibility for a personal mistake. Traditional wisdom suggests that doing so would amount to an admission of guilt that could provide damaging evidence in a future lawsuit. …
Continue ReadingThe Continuous Treatment Doctrine: A Doctor’s Nightmare
Every jurisdiction maintains a series of statute of limitations which set the amount of time a litigant has to initiate a claim before it expires. Some of the purposes of these statutes is to prompt reasonable diligence by the plaintiff to initiate claims and to prevent exposure for long dormant claims. Attorneys are familiar with the various exceptions that act to toll the limitations period, and establishing when the statutory period begins to run can sometimes lead to protracted litigation in its own right. Here, …
Continue ReadingWell Documented Advice Defeats Malpractice Claim
The best is not always good enough. Clients sue their professionals, whether justified or not. So, while there is no way to eliminate malpractice exposure, there are plenty of steps to avoid or help to defend such a suit. One of the golden rules of risk management is to properly maintain a written record of communications with the client. In particular, documentation is especially important when the client and professional may disagree. A well-documented file will not prevent all lawsuits but, as exemplified in a …
Continue ReadingMalpractice: Failure to Report Client’s Claim
There is no upside to failing to report a claim. You’ve been warned of the consequences facing professionals who take a wait and see approach or apply self-help measures before reporting. In some cases the professional may consider the claim meritless and therefore think that it doesn’t give rise to a “reportable” event. Other professionals, usually attorneys, may attempt to handle the claim on their own before notifying the carrier. In these scenarios, the carrier may elect to deny coverage and the insured is left …
Continue Reading