Professional Liability Matters

July 8, 2019 Long Term Care

New Illinois LTC Law Addresses Staffing Deficiencies

In June 2019, the Illinois State Legislature passed a bill to address nursing home staffing by vastly increasing funding for struggling long-term care facilities. Under the law, the 2020 fiscal year budget increases nursing home providers’ budgets by $240 million to be shared equally by the State and Federal governments, with $70 million allocated to assist facilities to meet staffing requirements. Arguably, there is a direct correlation between staffing and incidents that may give rise to litigation. Financial and staffing components often directly factor into …

July 2, 2019 Settlement

Prohibited Settlement Clauses

The Ohio Board of Professional Conduct recently issued an advisory opinion concerning restrictions on an attorney’s right to practice and solicit clients contained within settlement agreements. Of course, an effective settlement agreement attempts to eliminate all claims involving the settling parties. The goal is to put an end to the dispute, forever. But, what happens when a settlement agreement expressly prohibits the settling parties’ counsel from pursuing similar claims through other clients?

Advisory Opinion 2019-04 addresses practice restrictions in proposed settlement agreements. The opinion concluded …

June 25, 2019 Defenses / Privileges

Pennsylvania Modifies Work-Product Rule

In a recent decision, the Pennsylvania Superior Court clarified the application of the attorney work-product doctrine in the context of an e-mail exchange to a third-party consultant. The decision addresses the question of whether the work-product doctrine in Pennsylvania applies to otherwise confidential communications sent to a public relations company.

In Bousamra v. Excela Health, a hospital retained an outside consultant to manage the results of peer reviewed studies regarding arterial blockages and inappropriately implanted stents. The hospital was concerned with publicly disclosing the …

June 17, 2019 Insurance Products

Bond…Terminated Bond.

A New York court recently held that the termination condition in a fidelity bond applied to terminate coverage in respect of losses allegedly caused to an insured insurance company by the insured’s managing general agent. The Court found that termination was appropriate because the insured knew of the managing agent’s dishonest acts prior to applying for the bond.

In Starr Insurance Holdings, Inc. v. United States Specialty Insurance Company, Index No. 652164/2016 (N.Y. Supr. Ct. 2019), Plaintiff started insuring Warranty contract. Starr utilized Global …

June 10, 2019 Defenses / Legal Malpractice / Malpractice Defenses

Timed Out: Continuous Rep Doctrine Denied in Maine

You generally know the drill: a plaintiff has limited time to file suit. Generally, the statutory period begins when the plaintiff knows or reasonably should know that she has been harmed and that the defendant caused that harm. You also generally know that statute of limitations defenses are not nearly that simple. There are variables including the discovery rule and the gist of the action doctrine which may impact the argument. The continuous representation doctrine is another wrinkle that could affect whether a malpractice claim …

June 3, 2019 Employment Practices Liability

Obesity ≠ Protected Class

Making fun of a co-worker’s weight may be rude, but is it illegal? A New Jersey court recently addressed claims of disability discrimination and hostile work environment by an employee complaining of comments made by co-workers about his weight.

The employee worked as a bus driver over a 10-year period. During that time the employee weighed between 500 and 600 pounds. While he spent most of his time at work driving a bus, or performing related bus inspection duties, he also spent time in the …

May 13, 2019 Agents and Brokers / Real Estate Professionals

Escrow Agent Responsibilities: Robot or Rogue?

Real estate transactions occur all the time whether in the residential or commercial context. Notwithstanding a familial transfer, the arms-length transaction includes a buyer, a seller, and sometimes a bank or private money-lender who finances the deal. In some of those situations, there is also an escrow agent whose role is simply identified in the contract to be the “holder of the funds” while certain conditions are met post-contract. The escrow agent often keeps a fee for the services rendered, and becomes a mechanism for …

May 6, 2019 Employment Practices Liability

Ambiguity in Arb. Agreement Cannot Be Construed as Consent to Class Arbitration

In Lamps Plus, Inc. v. Varela, the U.S. Supreme Court held that an ambiguous arbitration agreement cannot provide the necessary contractual basis for compelling class arbitration under the Federal Arbitration Act. This decision reverses the Ninth Circuit’s decision that permitted an employee’s data breach class arbitration to proceed.

Lamps Plus built on the Supreme Court’s 2010 decision in Stolt-Nielsen S. A. et al. v. Animalfeeds International Corp, in which the Supreme Court ruled that an arbitration agreement, silent on the issue of class arbitration, was …

April 22, 2019 Long Term Care

NY Nursing Home Litigation: Double Recovery?

An alarming trend has emerged among the plaintiff’s bar in Long-Term Care litigation. Plaintiffs are alleging a right to recovery for death, or other injuries, under both the negligence/wrongful death standards (i.e. pain and suffering and pecuniary loss), and the Public Health Law (§2801-d). Historically, when there is a death resulting from negligence, the recovery is limited to pecuniary loss, but, now the plaintiff’s bar is arguing that when an elderly person who was a resident of a nursing home dies, as a result of …

April 15, 2019 Defenses

Third Circuit Reaffirms Heightened Securities Fraud Standard

One of the most difficult aspects of defending investor misrepresentation claims is that they naturally occur after a financial calamity. In retrospect, there is almost always an argument that a statement here, or omission there, was “misleading” in light of the company’s ultimate fate. It is for this very reason that common law imposes a heightened standard for investors attempting to bring such a claim for what is essentially statutory fraud. In a recent decision from the Third Circuit, the Court reiterated this heightened pleading …