Who is getting sued and for what?
The statistics regarding the nature and frequency of legal malpractice claims offer some good news and some bad news. The good news is that most legal malpractice claims are not brought against lawyers that do what FDCC lawyers do, or the firms in which we do it. Most claims are brought against lawyers in other areas of practice and who practice alone or in smaller firms. The bad news is that claims arise from doing the very same kinds of things that we do in our area of practice every day.
The ABA Standing Committee on Lawyers' Professional Liability prepares a survey of legal malpractice claims every four years. It publishes the results in its Profile of Legal Malpractice Claims, the most recent version of which is for the years 2008-2011.
This survey reveals that during this period of time about half of all malpractice claims were made against lawyers in just three areas of practice: real estate (20% - took over the top spot from personal injury plaintiffs’ attorneys), personal injury plaintiffs’ (16%), and family law (12%). All other areas of practice fill in the other half: estate, trust, and probate (11%), collection and bankruptcy (9%), corporate/business organization (7%), criminal (5%), and business transaction commercial law (4%). Only 3% of malpractice claims were made against personal injury defense attorneys, 2% against labor lawyers, 2% against worker’s comp lawyers, and 2% against patent, trademark, and copyright lawyers. The rest are each 1% or less of all claims.
With one caveat, the survey's results with respect to claims by firm size are also encouraging for lawyers that practice in larger firms: the vast majority of claims are made against lawyers in smaller firms. (The caveat is that most lawyers practice in small firms, so, even if they were evenly distributed, most claims would arise in small firms.) 34% of all claims were made against sole practitioners, and another 32% against lawyers that practice firms of 2-5 lawyers. 10% of claims were made against lawyers in firms of 6-10 lawyers, and 11% against lawyers in firms of 11-39 lawyers. Only 4% of claims were made against lawyers in 44-99 lawyer-sized firms, and about 9% were made against lawyers in firms of 100 or more lawyers.
These statistics demonstrate that most of the shots being fired in the form of legal malpractice claims are hitting targets at firms and in areas of practice that are different than ours. However, when considered by the nature of the activity that gave rise to the claims, the statistics also show that claims arise from doing the very same things that we do.
28% of all claims arise from the preparation, filing, or transmittal of documents, 20% from giving (or not giving) advice (this number was up from 13% in the last survey), and another 17% from errors committed when commencing an action or proceeding. 9% arise from mistakes in pretrial activities, and 7% from mistakes in negotiations and settlements. Only 5% of claims arise from errors in trials or hearings, and 2% from mistakes during appeals.
You are probably not going to manage the risks of being sued for malpractice by changing the size of your firm or the nature of your practice. You can, however, manage the risks of being sued for malpractice that relate to the manner in which you perform the “blocking and tackling” activities that go into practicing law every day.
Next: The Hazards of Close Attorney-Client Relationships
United States Court of Appeals for Eighth Circuit affirms jury verdict against defendant pharmaceutical manufacturer
Submitted by: Marisa A. Trasatti & Wayne C. Heavener, Semmes, Bowen & Semmes (Baltimore, MD)
In Winter v. Novartis Pharmaceuticals Corp., Nos. 12-3121,12-3409, 2014 WL 67756, ___ F.3d ___ (8th Cir. Jan. 9, 2013), the United States Court of Appeals for the Eighth Circuit held that the trial court appropriately denied defendant-manufacturer’s motion for judgment as a matter of law on the issue of causation. In particular, the Court held that the issue of whether plaintiff’s osteonecrosis of the jaw was a natural and probable consequence of the manufacturer’s alleged failure to provide adequate warnings was for the jury. Writing for the Court, Judge William Duane Benton held that judgment, as a matter of law, was inappropriate on the issue of causation in a failure to warn case, even though the prescribing physician admitted that he did not read the drug insert. The Court reversed, however, the trial court’s award to Plaintiff for costs of eighteen (18) depositions taken in multi-district litigation against the defendant.
Novartis Pharmaceutical Corporation (“Defendant”) manufactures the drugs Aredia and Zomeate. In 2003, Ruth Baldwin (“Plaintiff”) was prescribed Aredia and Zomeate following a procedure in which she had some two teeth extracted. She eventually developed osteonecrosis of the jaw (“ONJ”). When Plaintiff was prescribed the drugs in 2003, Novartis did not include ONJ on its package inserts. Several months after Plaintiff was prescribed the drugs, Novartis added ONJ in the “Post-Marketing Experiences” section of its inserts, but not in the “Warnings” section. Plaintiff eventually filed suit in the United States District Court for the Western District of Missouri, alleging that Novartis negligently failed to provide adequate warnings for Aredia and Zomeate. At trial, Defendant moved for judgment as a matter of law, which was denied. The jury awarded Plaintiff $225,000.00 in compensatory damages. Plaintiff was also awarded full costs for litigation-wide depositions used in multidistrict litigation (“MDL”). Novartis appealed the District Court’s denial of its motion, and argued that the District Court: (1) improperly found that inadequate warnings proximately caused Plaintiff’s injuries, and (2) abused its discretion in awarding Plaintiff costs for depositions conducted in the MDL.
The Court of Appeals affirmed the trial court’s denial of Defendant’s motion, but held that the trial abused its discretion in awarding the plaintiff full costs for depositions used litigation-wide. On the issue of causation, the Court held that a jury could reasonably have found that Plaintiff’s injury was the natural and probable consequence of Defendant’s behavior. Testimony at trial demonstrated that Defendant’s drug representatives did not inform Plaintiff’s prescribing physician of the risk of ONJ until after Plaintiff had begun taking Aredia and Zomeate. The Court rejected Defendant’s argument that the prescribing physician’s admission that he failed to read the package insert before prescribing the drugs to Plaintiff severed any causal link in this case. The Court relied on evidence adduced at trial that there were other ways that the prescribing physician could have learned about the risk.
The Court vacated and reversed the trial court’s award of costs. The Court noted that this case was one of over 650 in multidistrict litigation for consolidated pre-trial proceedings and discovery. The Court rejected the District Court’s reasoning that Plaintiff was entitled to costs for eighteen (18) depositions used throughout the consolidated MDL proceedings simply because she was the first one to request them. Rather, the Court held that where litigation costs are incurred in connection with more than one proceeding, the district court should allocate the costs. Hence, the Court held that the District Court abused its discretion in awarding Plaintiff full costs for litigation-wide depositions.
Managing Ethical Risks and Avoiding Malpractice in Close Attorney-Client Relationships – Part 1
Sometimes lawyers get sued for actually making mistakes that cost their clients money. Often, however, lawyers who did nothing wrong get sued because their clients lost money and are merely looking for ways to offset their losses. The goal of this series of blog posts is to help you avoid being the subject of both kinds of claims.
Fortunately, FDCC members are generally at a lower risk of being sued for malpractice than most lawyers. Most claims are brought against lawyers in small firms that practice in different areas of the law than we do. Most claims also arise out of "one off" representations; claims are far less common in the context of a good, long-standing relationship with a friendly client.
But if the last few years have taught us nothing else, they have taught us that people come and go; companies consolidate and fire your friends; and there is more emphasis than ever on the bottom line. You may find yourself one day in a comfortable, secure relationship with an in-house lawyer who loves your work, and the next day under the close, hostile scrutiny of a stranger that prefers another lawyer and may be looking for a reason to fire you, that disagrees with how you and the in-house lawyer he replaced handled a given case, or that has been charged with the task of recouping litigation costs and losses in some manner. Worse still, circumstances may change in a manner that causes a once-close friend to become an adversary.
You have no way of knowing in advance what client or matter may go south. From a risk management perspective, the best approach is to treat every client and every matter as if it may be The One (the case that gets you sued), regardless of how comfortable your relationship with the client may be. By doing this, you will decrease the chances that any given case or client will become The One.
Bottom Line Advice:long-standing, close relationships with clients should affect how, not whether, you implement basic risk management practices.
Corollary Observation:the things lawyers do to observe sound risk management practices, meet their ethical obligations, and engage in "best practices" to provide high quality legal services tend to overlap each other. In other words, implementing risk management practices does not simply help you avoid being sued for legal malpractice, and fulfilling ethical responsibilities does not simply help you avoid being grieved. Doing these things also help you render high quality legal services, which should be one of every lawyer's primary goals.
Example: diligence. Model Rule 1.3 requires a lawyer to act "with reasonable diligence and promptness in representing a client." Being responsive and proactive is a sound risk management practice; it will help you satisfy this ethical obligation; and it will help make you a high-quality lawyer. Do not think of risk management practices as a separate set of things you should do to avoid being sued; think about them, the ethical rules, and the best practices of good lawyers as an integrated whole.
Plug for General Counsel:if you are in a firm of 30 or more lawyers and do not have a general counsel or risk management partner, you should consider appointing one. Centralizing this function will enable your firm to recognize systemic problems, spot troublesome trends and patterns, and identify other problems that otherwise would go undetected. Letting attorneys know that a certain person in the firm has been designated as the person with whom they should consult about ethical or professional dilemmas also increases the chances they will seek guidance about such problems, rather than trying to solve them on their own.
Next time: Who is Getting Sued and For What
In Part 1, we discussed the mob rule aspects of social media. Not long afterwards, an interesting article in appeared in the New York Times on that very subject. http://nyti.ms/19clfkw It discussed how those with the ability to quiet an on-line mob often fail to do so. In Part 2 we focus on what the defense or corporate attorney can do to mitigate the harm resulting from social media criticism of the client or its defense strategy.
Usually, social media criticism can’t be stopped. Efforts to stop that criticism are likely to inflame it instead. What the defense or corporate attorney can do is be prepared for it. In many ways the fundamental strategy is not appreciably different for social media than it is for traditional media. The difference is social media is immediate and impatient. There are no “news cycles” in social media.
Preparation begins with risk assessment before the social media storm. Is the case or situation one in which the client will be perceived as having disproportionate power, influence or wealth? Can the client’s position be characterized as unfair, unjust or oppressive? Is the justice of the client’s position difficult to explain in a sound bite? If the answer to any of these questions is “yes,” there may be a significant risk.
The second part of risk assessment is to study the opponent. Is the opponent articulate? Appealing? Does he, she or it have powerful or influential friends or supporters? Is there a history of social media commentary on the part of the opponent or its friends or supporters? Does opposing counsel have a history of using the press or social media to advance his or her goals?
Once the risk has been assessed, identify the available tools and assess their efficacy. Many institutional clients centralize their public communications in corporate public relations or communication departments and forbid defense counsel, much less corporate counsel, from making public statements. If the case presents a significant risk of adverse social media exposure, outside defense counsel should discuss this risk with the client at an early stage so appropriate internal alerts can be provided and the client’s communication department can be included in the planning process.
In litigation, parties speak through their court filings. When drafting pleadings and motions, defense counsel needs to consider the risk that the content of the defendant’s pleadings will be quoted out of context by individuals lacking in legal training. One feature of social media is out of context statements develop lives of their own. Once disseminated in social media, they are difficult to explain, clarify or correct. When feasible, it’s beneficial to draft pleadings that won’t provide the “twitterverse” and bloggers with material.
The third step in preparation is planning the response in the event there is social media criticism. Not all social media criticism deserves a response, but a response strategy should be considered before the criticism surfaces. Usually the lawyer won’t be the conduit for the response, but the lawyer who has a coherent and considered response strategy will be more valuable to the client at a time when action may need to be swift and well thought out.
After preparation comes monitoring. Social Media criticism builds quickly and the defendant needs as much notice of that criticism as is feasible. Institutional clients with corporate communications and social media presences often already monitor social media for references to the client. Other clients do not have an institutional tool available. In those circumstances, defense counsel needs to take action. The available tools are evolving continuously and what works today may be passé tomorrow. Available options include Google Alert e-mails (setting an alert in Google for new mentions of the client, the opponent or the incident that gave rise to the lawsuit), or manually monitoring the opponent’s Twitter account without officially following that account. There are apps and webpages designed to automate this process, but the author has not used them and cannot comment on their utility.
The bottom line is defense lawyers cannot ignore social media. It can be as dangerous, if not more dangerous to the client as traditional press coverage, only without the professional and ethics standards to which the mainstream press aspires.
Over the past several years, the use of social media has expanded dramatically to the point where it now can have a significant impact on business decisions, corporate public relations and how litigants are perceived. For those reasons, defense lawyers need to be social media aware.
Being social media aware isn’t confined to using social media for marketing or personal purposes. It includes being aware of the impact social media has on the public discourse and the public perception of the defense attorney’s clients. The defense lawyer should think of social media as a untraditional crowed-sourced form of journalism not necessarily subject to the professional standards of traditional print and broadcast journalism. Blogs, including this one, are a form of social media. So too is Twitter, BuzzFeed, Facebook, Instagram and the like. And, other forms of social media are being invented continuously. Have you hear of Pheed, a tool for people to monetize their posts? I hadn’t until I researched this post. Thumb, a crowd sourced decision making application? Path? Not all have “journalistic” uses today, but then, neither did Twitter initially.
The untraditional, crowd-sourced (or less politely, mob) aspects of social media make it particularly challenging for civil defendants and corporations because they can create a surge of public and consumer opinion that influence corporate or litigation decisions. For example, just this last weekend a woman in corporate communications lost her job for sending a racially and socially insensitive tweet just before boarding a flight to South Africa. By the time her flight landed and she was once again connected, it was too late because her tweet had been widely circulated and discussed. Indeed a hashtag regarding her location was one of the top trending items on Twitter and parody accounts for her appeared even before she landed. http://dailym.ai/1jAg7As Similar issues affected an insurance company defending an underinsured motorist claim when the deceased’s sibling accused her insurer of “defending her killer” in court. http://bit.ly/J8URBG
While it’s easy to discount last week’s incident as the product of poor decision making, agitating the social media world doesn’t require poor decision making – the party simply needs to be in the wrong place at the wrong time. Defendants and corporations can’t eliminate all social media risk but defense attorneys and corporate counsel need to be attuned to how a particular dispute could play out in the social media arena in order to avoid increasing the risk of adverse social media exposure.
Next up: A few social media management ideas.
In D.C. Med-Mal Case, Court Holds that Plaintiff’s Expert Was Not Required to Rely on Data that Would Provide the Highest Degree of Certainty, and that Trial Court Abused Discretion in Excluding Expert’s Causation Testimony
Perkins v. Hansen, No. 11-CV-1540 (District of Columbia Court of Appeals, November 7, 2013), involved a medical malpractice claim advanced by the Plaintiff, whose wife had died at Georgetown University Hospital from severe liver failure. Plaintiff brought a medical malpractice action against his wife’s treating physicians, alleging failure to timely diagnose his wife’s severe liver failure, which caused his wife not to receive a life-saving liver transplant. Plaintiff claimed that had her physicians recognized her liver failure sooner, she would have been admitted to a facility that performed liver transplants and would have survived.
At trial, Plaintiff offered the Dr. Esteban Mezey to testify on causation, explaining that it was more likely than not that if Plaintiff’s wife had been transferred to a hospital that performed transplants, she would have received a transplant and survived. The Defendants objected to the testimony by Plaintiff’s expert because he did not review the relevant data on the mean and median wait times for organ transplants in the relevant area; they asserted that the expert did not have an adequate foundation for his opinion. The trial judge sustained the objection and excluded Plaintiff’s expert’s testimony on causation. Without that testimony, Plaintiff conceded that he could not establish causation, and the trial judge granted Defendant’s motion for a directed verdict. On appeal, Plaintiff alleged that the lower court abused its discretion in excluding his expert’s testimony and also by granting the directed verdict. The District of Columbia Court of Appeals agreed and reversed and remanded the case for a new trial.
The Court of Appeals recognized that there was no doubt that Plaintiff’s expert had the necessary skill, knowledge, and experience to provide a reliable foundation for his testimony based on his credentials, such that he could opine about the likelihood that Plaintiff’s wife would have received a liver transplant and survived if she had been admitted to a transplant facility sooner. He had working knowledge of the likelihood of livers being available to patients coming to transplant hospitals. Still, Defendants argued that in a setting where actual data on the issue in question existed, the witness can and must rely on that data to support his opinions—otherwise, the expert’s experience constituted nothing more than conjecture. Where the expert failed to know and access the relevant data, there was a hole in the foundation of the expert’s opinion.
The Court reiterated that a doctor’s experience alone could qualify him to offer expert testimony and made clear that experts are not required to rely on data that will provide the highest degree of certainty or probability in establishing a prima facie case of medical malpractice. The available data would have been fodder for cross-examination, but was a red herring in assessing the admissibility of the expert’s testimony. Therefore, the Court of Appeals reversed the trial court’s judgment and remanded the medical malpractice case for further proceedings
Submitted by: Marisa A. Trasatti & Colleen K. O’Brien, Semmes, Bowen & Semmes (Baltimore, MD)
This year, Nevada enacted a statute, NRS 597.995 invalidating arbitration agreements that do not include “specific authorization” showing the party has affirmatively agreed to arbitrate. The statute’s legislative history indicates it was motivated by frustration with mandatory arbitration provisions in “click to agree” software licenses, mobile telephone contracts and similar consumer agreements.
But, there are unintended consequences. A great many types of contracts contain provisions treated by courts as arbitration agreements even if they are not the typical consumer-business agreements. For example, in most states (but not Nevada), fire insurance policies are required to include appraisal clauses under which disputes regarding the amount of a covered loss are to be determined by binding appraisal. Courts in many jurisdictions, including Nevada, treat policy appraisals as a form of arbitration. See, Silverman v. Fireman’s Fund American Ins. Cos., 604 P.2d 805 (Nev. 1980).
There is nothing in the legislative history of the Nevada statute to indicate the legislature even thought about its application to first party appraisal clauses. The Nevada Division of Insurance is taking the position the statute applies to insurance policies. Indeed, the statute is not restricted to consumer agreements; the only limitation is the use of “person,” which may not necessarily be restricted to natural persons, namely humans.
Invalidating appraisal clauses where there is no “specific authorization” by the policyholder is almost certainly an unintended consequence of this statute. If Nevada had a statutory fire insurance policy, NRS 597.995 would not apply to those statutorily mandated terms.
Unfortunately, this type of legislative action without full consideration of the ramifications of a pending bill is not unusual and it’s not limited to any particular state. In this instance, the Nevada legislature does not convene again until 2015, so there will not be a legislative “fix” for this issue.
11.Keep it simple. Limit what you have to say. Say too much and you will lose the reader. If you can make two or three points that stick with the reader, you are better off than making ten points that do not.
12.Speak plainly. Do not use flowery prose to get your point across. You do not have to show the reader how smart you are. Readers hate arrogance. They will hate you for it.
13. Be precise. Avoid ambiguity in your writing. Make sure what you intend to say is expressed correctly.
14. Speak confidently. Do not be shy or bashful about what you have to say. If you are not confident about your position do not expect the reader to be.
15. Tell a story. Make it a good read. Judges and clients read their share of letters and motions. If you want yours to stand out, tell a story. The beginning must captivate, the middle must hold the reader’s attention and the ending must be strong.
In Miller v. Ortho-McNeil Pharmaceutical, Inc., No. 3:11oe40008 (N.D. Ohio November 5, 2013), the United States District Court for the Northern District of Ohio, Western Division granted defendant pharmaceutical manufacturers’ combined motion for summary judgment, motion for judgment on the pleadings, and motion to dismiss. Writing for the Court, Judge David A. Katz found that the plaintiff’s claims were barred by the learned intermediary doctrine and the applicable statute of limitations. The plaintiff’s claim also set forth facts insufficient to state a plausible claim for relief under Fed. R. Civ. P. 12 (c). Interpreting Mississippi law, the Court, therefore, found multiple reasons for granting the defendants’ combined motions.
Sarah Miller (“Plaintiff”) received the Ortho Evra contraceptive patch from two (2) different providers over the span of two (2) years. The first provider, Certified Nurse Practitioner Donna Cobb, knew the potential side-effects associated with the Ortho Evra patch, including the elevated risk of blood clots. During Plaintiff’s examination in 2006, Ms. Cobb discussed various possible complications with Plaintiff that could result from Ortho Evra, including blood clots. Ultimately, Ms. Cobb believed the benefits of the contraceptive patch outweighed its risks, and she prescribed Ortho Evra to Plaintiff. Plaintiff saw the second provider, Certified Nurse Practitioner Traci Speights, in 2007 and 2008. Ms. Speights was aware that Ortho Evra could increase a patient’s risk for thrombotic disease and pulmonary embolism. Ms. Speights had learned of the patch’s potential side-effects from the FDA-approved package inserts accompanying Ortho Evra, a Dear Healthcare Professional Letter (DHCP), and pharmaceutical representatives. Ms. Speights reviewed the warnings with Plaintiff, and encouraged Plaintiff to re-read the labeling and handouts included with the packet when prescribing her the patch.
In April 2008, Plaintiff suffered a pulmonary embolism, and filed suit against the manufacturers and distributors of Ortho Evra (“Defendants”) in August 2011. Plaintiff’s case was one of many, which the Judicial Panel on Multidistrict Litigation assigned to the United States District Court for the North District of Ohio. Defendants filed a combined Motion to Dismiss, Motion for Judgment, and Motion to Dismiss.
The Court granted Defendants’ motions, finding that Plaintiff’s claims were barred for several reasons. First, the Court held that the FDA-approved package inserts and DHCP letter sufficiently satisfied the Learned Intermediary Doctrine, and adequately discharged Defendants’ duty to warn. In reaching its conclusion, the Court explained that the Learned Intermediary Doctrine recognizes that a manufacturer has a duty to warn physicians, not laymen. The Court rejected Plaintiff’s argument that the warnings provided were inadequate. The Court noted that, while the adequacy of a warning is typically an issue for the trier of fact, a warning may be adequate as a matter of law where the adverse effect suffered by the patient was one that the manufacturer specifically warned against. In this case, Plaintiff suffered pulmonary embolism, and both professionals were aware of these warnings, and even counseled Plaintiff about those warnings. Furthermore, Plaintiff failed to show any disputed issue of fact regarding causation because she did not show that a different warning would have changed the decision to prescribe Ortho Evra.
The Court also found that Plaintiff’s Complaint was insufficient to state a claim under Fed. R. Civ. P. 12 (c). Rather than offer facts that supported a plausible claim for relief, Plaintiff merely provided conclusory allegations. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff also failed to bring her claim within Mississippi’s three (3) year statute of limitations. Plaintiff sustained her injury in April 2008, and filed suit in August 2011. The Court rejected Plaintiff’s argument that Mississippi recognizes the Discovery Rule, and ultimately held that her claim was barred.
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Submitted by: Marisa A. Trasatti & Wayne C. Heavener, Semmes, Bowen & Semmes (Baltimore, MD)
Whether you like it or not, most of the world will develop an opinion of you based on what they see on the internet – based on your firm’s website, your wall on Facebook, your posts on LinkedIn, your tweets or whatever else is out there on Google by or about you. Remember that you have an image and a brand and you can either build up that brand or tear it down based on what you put out there in the internet. Also, from time to time, Google yourself and see what others are saying. With so many attorney review sites popping up, investigate what your reputation is and always do what you can to improve your online reputation.