Your friends at Professional Liability Matters often focus on interpretation of Affidavit of Merit (“AOM”) requirements. As our handy table shows, each state has its own rules as to AOM requirements and other details regarding substance and form. These rules are of critical importance to many malpractice claims. Most states require an AOM from a professional within the same field certifying that the malpractice case has merit. This is a necessary gateway function so that litigants cannot sue professionals without any justification. Implicit in this requirement is that the typical fact-finder may not understand the appropriate standard of care, and therefore must rely upon professionals within the field. However, in some cases, an expert opinion may not be necessary to understand how the standard of care was breached. In some states this qualifies as an exception to the AOM requirement. Take for example the following case out of New Jersey which applied the common knowledge exception to the AOM requirement.
Contract law is that body of rules that govern agreements between contracting parties. In contrast, tort laws govern situations where one person has harmed or injured another. Usually, professional liability claims grounded in one body of law or the other. There are various defenses available to the professional to ensure the claim against them falls in one of those categories (if any), but not both. A recent A&E decision would suggest otherwise, however.
Many professionals promote through social media. Within small practices, where an individual is often responsible for contributing content to the site, the lines between business profiles and personal accounts easily overlap. On the surface, a professional’s decision to add personal content to her company account does not necessarily raise any ethical or business concerns. However, where ownership of the business changes, disputes may arise as to whether the social media account is property of the company, or should remain in the possession of the individual professional who created it.
Litigation can get heated. Tempers may flare when the stakes are high and the result can be contentious exchanges amongst counsel. Sure, the adversarial nature of litigation is to be expected (and welcomed by some practitioners), but there is a line in the sand. Some cross that line and make things personal. What to do when things spiral out of control? Can insults form the basis for a separate suit amongst counsel?
Professional Liability Matters would have little to discuss if professionals were perfect. Needless to say, we are not. Often, it is how the professional responds to the inevitable error that can mean the difference between soon forgotten mistake and malpractice. Upon the discovery of an error, some professionals are confronted with a difficult conflict: their interest in confronting the error and discussing it with the client on the one hand, without making an admission that could jeopardize insurance coverage on the other. This conundrum places the professional in a very difficult position.
A New York state judge recently provided a compelling reminder of the serious ramifications for failing to provide truthful testimony on the stand. The focus of Queens Supreme Court Justice Duane Hart’s admonition was an orthopedist routinely hired to assist in the defense of personal injury cases. When the court discovered through a hidden camera recording that the expert's testimony was exaggerated at best – or an outright lie at worst – the court ordered a mistrial and directed his attention to potential criminal proceedings against the expert.
Let’s start with the basic principle: an attorney’s duty runs exclusively to the client apart from limited circumstances of fraud when an attorney may be liable to the client's adversary. The question remains whether an attorney’s decision to keep her mouth shut - i.e. not to disclose key information to the other side – constitutes actionable fraud. According to a recent decision by the Texas Appeals Court, the fact that an attorney did not disclose information to her adversary does not constitute actionable misconduct.