Professional Liability Advocate

Professional Liability Advocate

Florida Supreme Court Rulings Affecting Health Care Providers

1. It is well established that Florida physicians are required to report any adverse incident that occurs in their office to the Department of Health. Discovery of these reports is a patient’s constitutional right under Article X, section 25 of the Florida Constitution (Amendment 7). Now, it also appears that adverse incident reports to any Patient Safety Organization (PSO) under the federal Patient Safety and Quality Improvement Act of 2005 (PSQIA) are most likely discoverable following a recent Florida Supreme Court decision. Continue Reading

Nice Attorneys Sometimes Finish Last

Attorneys are accustomed to being called “ambulance chasers” or “sharks,” always interested in increasing their fees. Even if a lawyer reduces a bill for an unhappy client, that conduct may backfire if the client isn’t satisfied with the reduction. The attorney cannot later renege on the gratuitous fee discount or reduction, no matter what the reason. In a March 3, 2017, ruling, the Massachusetts Appeals Court − the commonwealth’s intermediate appellate court − held that a voluntary “professional courtesy credit” issued unconditionally to a client cannot be rescinded by a law firm when the client fails to timely pay its reduced bill. It just wouldn’t be “fair.” Continue Reading

Claims of Negligent Hiring, Supervision or Retention Draw Hospitals into Abuse Cases

Hospitals are commonly named as defendants in medical malpractice lawsuits for claims arising from alleged injuries within their walls, but what is their exposure to liability for claims that arise from alleged sexual assaults by staff on their premises? In September 2016, the Atlanta Journal-Constitution released a five-part investigative series examining the alleged epidemic of physician sex abuse in all 50 states. The series examined the purported problem of sexual abuse by physicians, including how licensing bodies discipline physicians, how cases of sex abuse are handled in each state, the ability of physicians to continue to practice despite allegations of abuse, and the effects of such abuse on the victims. Continue Reading

Accountants M&A Alert: New AICPA Guidance on Transfer of Client Files

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If you are selling or acquiring an accounting practice, you need to read the AICPA’s new guidance “Transfer of Files and Return of Client Records in Sale, Transfer, Discontinuance or Acquisition of a Practice,” which clarifies the obligations of the selling and the acquiring parties and explains how to deal with clients that do not respond to the notification of the transaction.

Accounting firm mergers and acquisitions have been hot for quite some time, leading to a wealth of public information concerning the important “do’s and don’ts” in this arena. While most participants have been attentive to their professional and ethical responsibilities while pursuing these transactions, there has been a certain lack of uniformity in how some of these issues have been handled, leading to concern by some that there was not enough authoritative guidance in this area.

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Is This the End of Arbitration in Nursing Home Litigation?

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As anticipated, the Centers for Medicare & Medicaid Services (CMS) has released new regulations addressing the use of arbitration agreements in nursing home admission agreements applicable to facilities that participate in Medicaid and Medicare programs. However, the scope has far exceeded what was expected. The proposed regulations only sought to ban mandatory arbitration agreements as a condition of admission. The actual regulations prohibit “pre-dispute” arbitration agreements instead.

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Deloitte’s $500 Million Sentence

We have assisted many accounting firms in the creation or revision of their client engagement letters. They very often question the need to include certain provisions intended to limit their liability to their clients and sometimes ask whether the provision is even enforceable. Whether the provision will be enforced is uncertain due to the very limited case law addressing liability-limiting provisions in accountants’ client engagement letters, and there could be variations in enforcement from state to state. Nevertheless, we regularly advise our clients to include the provisions, even if enforcement is uncertain, because the provision might just be accepted and never challenged, thereby serving its purpose, even if a court strikes it down after a legal challenge. Continue Reading

The Punishing Effect of Rule 11

Federal courts correct bad litigation behavior, eventually.

People take being sued personally, and lawsuits can take an emotional toll on defendants, whether as an individual or as a representative of an employer. Anger and frustration always lead to the same questions: Can we sanction them for lying? Can I get my fees (or my insurance deductible) back? Won’t the court do something?

Federal courts can and do sanction attorneys for lying, failing to investigate claims and “posturing” a case to get a settlement. But sanctions are reserved for the worst offenders, and it often takes multiple violations before attorneys’ fees, costs or other monetary fines are imposed. Continue Reading

What Attorneys Can Learn from History’s Largest Data Breach

468453132On April 3, 2016, the public learned that millions of client documents from the Panamanian law firm and corporate services provider Mossack Fonseca & Co. (MF) had made their way to an international organization, the International Consortium of Investigative Journalists (ICIJ), and that the information would be used to publish potentially damaging stories. In addition, authorities across the globe, from Japan to Switzerland to the United States, are reviewing the documents and investigating potential tax implications, regulatory violations and criminal activity.

Background
It is estimated that since its inception in 1977, MF has incorporated 250,000 businesses, largely in offshore jurisdictions. MF serves a wide range of clients, including politicians, celebrities and corporations. Incorporating “anonymous” businesses is entirely legal. There is, however, a stigma attached to “shell companies,” and several of the public figures associated with these businesses have already been embarrassed by exposé-style articles. The ICIJ has promised that additional, highly compromising articles will be published. Continue Reading

Negative Online Reviews: The Best Defense

WebA recent Washington Post article examined the issue of patient privacy complaints after medical providers responded to negative Yelp® reviews about medical care. The issue of how a professional can (or should) respond to negative online reviews is not limited to physicians or medical facilities. While attorneys are not subject to HIPAA, they are all well aware that attorney-client communications are privileged and confidential and only the client can waive that privilege.

In 2013, Illinois attorney Betty Tsamis was reprimanded by the Illinois Attorney Registration and Disciplinary Commission for responding to a negative Avvo review by a former client in a manner that publicly revealed confidential client information. Similarly, a public reprimand was issued against a Georgia attorney, Margrett Skinner, after she responded to a negative review by discussing details of her representation of her client in a domestic relations matter.

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The Proof Is in the Password!

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Consider this scenario: A young couple entrusts you, an experienced real estate attorney, to assist them in the purchase of their first home. Days before closing, your unsecured email account gets hacked and your client receives an email, which to all appearances is from you, telling them to wire funds to a third-party account instead of bringing the cash to closing. You only find out about “your” email to your client after the transfer has been made and your clients’ savings, accumulated over many years, is gone. What exactly do you think you can say to your clients to make it better?

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