Legal Malpractice
Florida
Clients cannot be comparatively negligent in relying upon the attorney's erroneous advice:
"A client cannot be found to be comparatively negligent for relying on an attorney's erroneous legal advice or for failing to correct errors of the attorney which involve the exercise of professional expertise. See Becker v. Port Dock Four, Inc., 752 P. 2d 1235, 1239 (Or. App. Ct. 1988); Theobald v. Byers, 13 Cal. Rptr. 864, 866-67 (Cal. 1st DCA 1961). Here, Former Wife relied on the Firm's representation that she could still bring her claims on the promissory notes even if she signed the settlement agreement. Simply because she was somewhat sophisticated in business matters does not impose upon her the burden to second guess her attorney's advice or to hire a second attorney to see if such advice was proper. The reason the Firm was hired was for their legal expertise and superior knowledge of the legal implications that the signing of the marital settlement agreement would entail. Thus, we find that the trial court erred in failing to direct a verdict in favor of Former Wife on the issue of comparative negligence. See Becker, 752 P.2d at 1239; Theobald, 13 Cal. Rptr. at 866-67." Tarleton v. Arnstein & Lehr, 719 So.2d 325, 331, 23 Fla. L. Weekly D1920 (4th DCA 1998)
Maryland
Courts recognize claims against attorneys for negligent settlement advice:
Maryland's highest court, the Court of Appeals, recognized this cause of action in Thomas v. Bethea, 351 Md. 513, 529, 535, 718 A.2d 1187, 1198 (1998). The Court emphasized that there is a line of divide between a mere difference in opinion as to the range and likelihood of results in a case, on the one hand, and negligent advice on settlement, which is advice that no reasonable attorney, properly aware of the facts and the law, would provide to the client. The Court cited with approval, 351 Md. at 525, one of the national founding precedents in this line of decision, Ziegelheim v. Apollo, 128 N.J. 250, 607 A.2d 1298, 1304 (1992), where the New Jersey court pointedly stated:
"[W]e insist that the lawyers of our state advise clients with respect to settlement with the same skill, knowledge, and diligence with which they pursue all other legal tasks. Attorneys are supposed to know the likelihood of success for the types of cases they handle and they are supposed to know the range of possible awards in those cases...After all, the negotiation of settlements is one of the most basic and most frequently undertaken tasks that lawyers perform."
District of Columbia
Florida
Courts recognize that if an attorney violated fiduciary duties owed to the client, fees earned by that attorney following that violation, may have to be disgorged upon proof of the violation.
Restatement (Third) of the Law Governing Lawyers, Section 49, holds that an attorney who violates a fiduciary duty to a client may be required to disgorge fees, based on the seriousness of the violation, the deliberateness of the violation, and the seriousness of the harm to the client. Florida appears to recognize that an attorney is not entitled to a fee if he has violated the professional rules of responsibility in a fundamental way, Singleton v. Foreman, 435 F.2d 962, 970 (5th Cir. 1970) ("Implicit in every attorney client contract is a covenant by the attorney that he will conduct himself according to customary professional standards…" and ordering the return of the retainer when the contract provided for a prohibited contingency fee in a matrimonial action), or when the attorney continues to represent the client and "realizes or should realize that he cannot represent his client's interests." White v. Roundtree, 386 So. 2d 1287 (3rd DCA 1980).
The District of Columbia provides for the disgorgement of attorneys fees by an attorney who violated the attorney's fiduciary duties even if those violations did not directly cause the client monetary harm, Hendry v. Pelland, 315 U.S. App. D.C. 297, 301, 73 F.3rd 397, 400 (D.C. App. 1996) (following distinction between a claim in which the client seeks disgorgement of legal fees for breach of a fiduciary duty (no causation required) and a claim in which the client seeks compensatory damages (causation required), citing Restatement (Third) of the Law Governing Lawyers Section 49cmt.d (Tentative Draft No. 4, 1991) (forfeiture may be required absent showing of harm).
Courts in other jurisdictions have accepted this analysis. In Texas, Burrow v. Arce, 997 S.W.2d 229 (1999), the Texas Supreme Court held that attorneys may be required to disgorge all of their fees even if their clients did not suffer any monetary harm. Another decision in Texas, by an intermediate appellate court, is Lopez v. Munoz, Hockema & Reed, 980 S.W.2d 738 (1998). The Lopez court held that it had the power to order a disgorgement from the attorney for a portion of the total fee. Both of the Texas cases involved plaintiffs who obtained substantial tort settlements and thereafter sued counsel seeking to recoup a portion of the fee paid. And, in Minnesota, the court in Gilchrist v. Perl, 387 N.W.2d 412, 415 (Minn. 1986) in ruling that causation is not required in a claim seeking forfeiture of fees announced a ruling fully compatible with that of the District of Columbia in the Hendry case.
New York
Should the recovery to the client in the legal negligence case be offset by the contingency fee that the errant attorney would have earned in the case within a case had that attorney competently provided assistance to the client.
Campagnola v. Mulholland, Minion & Roe, 76 N.Y.2d 38, 43 555 N.E. 2d 611, 613-14, 556 N.Y.S. 2d 239, 241-42, (NY 1990) ("We conclude that a reduction of the client's recovery should not be allowed in this case and for reasons of public policy, we decline to apply the traditional rule of contract damages to permit a negligent attorney to obtain credit for an unearned fee.").
Medical Malpractice
Florida
Defense lawyers barred from private contact with plaintiff's treating doctors
Sometimes the lawyer for the defendant doctor will try and talk with the plaintiff's treating doctors on the q.t. An appellate court in Florida has recently ruled to bar these private contacts. In this case, Figaro v. Bacon-Green, 734 So. 2d 579, 580, 24 Fla. L. Weekly D1408 (3rd DCA 1999) the court based its ruling on Section 455.667(5), Florida Statutes, requiring confidentiality of patient records unless in response to a subpoena and ruled that the trial judge committed error when the trial judge denied the plaintiff's motion to prohibit ex parte contact by the defense lawyer with the plaintiff's treating physicians. West Virginia reached the same conclusion, based on common law principles of the trust the patient places in his physician, State of West Virginia ex. Rel. Joan B. Kitzmiller v. Honorable John L. Henning, Judge of Randolph County Circuit Court, 437 S.E.2d 452 (W. Va. 1993).
Maryland
Defense lawyers can hire plaintiff's treating doctor as a defense expert
Maryland's intermediate appellate court has authorized defense counsel engaging as their expert a treating doctor for the plaintiff. Butler-Tulio v. Scroggins, 139 MD. App. 122, 774 A. 2d 1209, cert. denied, 366 Md 247, 783 A 2d 221 (2001).
Ghost surgery
Maryland has upheld the cause of action for ghost surgery as within the patient's rights to informed consent from the physician in whose surgical hands she has consented to perform the procedure. When the surgeon substitutes another doctor, the surgeon violates the patient's consent. The plaintiff must demonstrate the clarity of the undertaking by the specific surgeon to personally perform the surgery. Dingle v. Belin, 2000 WL 365660 (Md.), rev'g, 127 Md. App. 68, 732 A.2d 301 (1999) (April 11, 2000) (subject to revision).
Other Interesting Decisions
Admissibility of Evidence that the malpractice defendant has been sued before:
Oftentimes, the defendant doctor has been sued before. Counsel for the plaintiff often considers whether at trial the fact of the prior suits against the defendant can be brought to the jury's attention. Courts have split on this question. The rationale against admitting this type of proof is that it is impermissible evidence of conduct, that is the doctor acted improperly on another occasion so that the doctor must have acted improperly on this occasion. Traditionally conduct evidence is improper. The exception would be where the prior conduct reflects on credibility. The intermediate Michigan appellate court thus reasoned in Persichini v. William Beaumont Hospital, No. 207377 (Mich. Ct. App. Nov. 30, 1999). Indeed, that court upheld a mistrial when plaintiff's counsel inquired of the doctor/defendant/expert as to whether he had been sued before.
On the flip side, the defense has tried in other matters to introduce the doctor's history of suits followed by favorable verdicts. This, too, offers impermissible proof, Desai v. Korgaonkar, Nos. 97-P-1439 & 98-P-2095 (Mass. Ct. App. Feb. 8, 2000). But, that court refused to reverse a favorable defense verdict even upon plaintiff showing that the doctor had not responded candidly in a sworn response about his claims history. In that response, the doctor did not reveal a prior claim. And, in that case, as in the case at bar, the doctor was represented by the same attorney who elicited for the jury the doctor's testimony (now shown to have been incomplete) that his slate was clean.
Maryland agrees with the credibility exception to the general rule banning conduct evidence when the defendant doctor places his own expertise at issue by giving testimony as to the standard of care, Goodwich v. Nolan, 650 A.2d 296, 302fn.10 (Md. App. 1994), aff'd 680 A.2d 1040 (Md. 1996). The Maryland intermediate appellate court stated in a footnote: "As appellees point out, however, Dr. Goodwich indicated in his answers to interrogatories and in correspondence to counsel for Ms. Brooks that he intends to testify on his own behalf as an expert and apparently did testify in this capacity at his deposition. Dr. Goodwich is, therefore, subject to cross-examination on his qualifications as an expert witness, which may include questions pertaining to his staff privileges, past disciplinary problems, and general competence." 650 A.2d at 302 fn. 10.
Compensatory Damages: Recovery upon proof that the patient is at risk of requiring the help of future surgery even if the future surgery probably will not be necessary.
Pearson v. Bridges, 524 S.E.2d 108 (S.C. App. 1999), aff'd 544 S.E.2d 617 (2001) the South Carolina courts felt that plaintiff, in a lap choly (gallbladder removal) case, could present evidence that the follow on corrective surgeon could tell the jury that the plaintiff's future medical care broke down into four scenarios: (1) continual monitoring; (2) if the bile duct ruptured, the performance of the procedure of cholangioplasty; (3) if cholangioplasty failed, perform further surgery, and; (4) if further surgery failed, perform a liver transplant. The rationale was that so long as these planned monitoring, diagnostic, and surgical courses were required by the patient's injured anatomy and were rational and not speculative, the jury could hear them, even though plaintiff could not prove that each of these courses would more likely than not be required.
Accord: Zieber v. Bogert, Nos. 1828 Philadelphia 1998 and 1831 Philadelphia 1998 (Pa. Super. Ct. Jan. 31, 2000): patient in claim for failure to timely diagnose cancer may recover for an increased risk that the cancer might recur in the future. Accord, e.g., Anderson v. Golden, 664 N.E.2d 1137 (Ill. App. 1996) and United States v. Anderson, 669 A.2d 73 (Del. 1995). Even though the risk of recurrence was below 50% these courts reasoned that the increased risk was itself a distinct and compensable injury.
