Arbitration agreements are relatively common in nursing home agreements but often are not enforced by courts. One basis courts rely upon in refusing to enforce arbitration agreements are state court rules that require certain claims to proceed to trial. The U.S. Supreme Court recently declined to hear the appeal of a Pennsylvania Supreme Court decision requiring a survival claim to proceed to arbitration, despite a local rule that requires trial for such claims. The decision provides some clarity on how courts will assess clashes between …Continue Reading
The Automatic Stay under U.S. Bankruptcy law is a powerful tool in the judicial system. By filing for bankruptcy, a person or entity immediately creates a cocoon of safety that is generally impenetrable without subjecting the offending party to punitive repercussions. In fact, even parties without knowledge of the bankruptcy filing may nevertheless face consequences from the presiding bankruptcy court for violating the Automatic Stay. Of course, this does not mean that parties can use a bankruptcy petition solely to protect themselves from outside pressures. …Continue Reading
The idiosyncratic nature of the Louisiana legal system is one that is noted, if not explored, in many law schools around the country. Even as early as high school, many teachers will explain that Louisiana is unique insofar as its legal system is based primarily on Spanish and French civil law, rather than the British tradition used in the other 49 states. The differences between Louisiana and the rest of the country do not end there, however, and a large accounting firm was recently successful …Continue Reading
The application of the statute of limitations affirmative defense is theoretically simple, yet practically complex. Often, the issue is when does the clock start; i.e. when does the claim accrue. The result varies by state and may come down to the specific fact pattern. The water may be muddied further if the plaintiff incurs more than one injury. This is relevant to the professional malpractice community. Take for example a recent California accountant malpractice case involving state and federal audits and $10 million on the …Continue Reading
The professional-client relationship often begins with a retainer agreement/engagement letter: a contract that defines the terms and scope of professional services. Accordingly, when a client files suit alleging professional malpractice, the claims will generally sound in both contract and tort. Whether a claim is asserted as a breach of contract or tort can have important implications with regard to the statute of limitations and other potential defenses. For instance, depending on the state, a tort claim may be time-barred where a breach of contract claim …Continue Reading
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. A recent decision focuses on the application of this rule in the med-mal context.
In Stephen Meehan v. …Continue Reading
The particular nuances of each state’s affidavit of merit rule can be difficult to navigate. Since affidavits of merit (AOM) are so critical to malpractice actions, we do our best here at Professional Liability Matters to keep you informed of the particular differences among states and various defenses that can be raised in a malpractice suit requiring an AOM. Last week we blogged about a particular exception to the AOM rule in New Jersey, which you can check out here. This week we turn …Continue Reading
As you are undoubtedly aware, Professional Liability Matters previously circulated this handy table addressing the various affidavit of merit requirements throughout the country. Generally, in jurisdictions that require it, an affidavit of merit is necessary in order to maintain a malpractice claim against specified professionals, often including attorneys. But what is a “malpractice claim”? Suing a professional does not always equal malpractice. For example, a claim for malicious use of process is based upon a different standard than negligence. So this raises the question, is …Continue Reading
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.
The New York Court of Appeals recently decided one such case in Davis v. S. Nassau Communities Hospital. In that case, a patient was treated …Continue Reading
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.
In Garnter v. Rifflard, the New …Continue Reading