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Case Summaries

Professional Malpractice

In a suit against a seller's real estate agent and broker for professional negligence in failing to assure that the sellers did not grant to their lender an option inconsistent with buyers' options on the same properties, the trial court's grant of the defendants' motion for summary judgment is affirmed, where the complaint was not filed within the two-year limitations period applicable to actions for professional negligence, as: 1) the cause of action accrued more than two years before the complaint was filed; and 2) the three-year limitations period of Code of Civil Procedure section 338(b) was not applicable, since the gravamen of the cause of action was not injury to the properties, but injury to the plaintiffs' option rights to purchase the properties.

In a contest between the victim of medical malpractice and the State of North Carolina over the proceeds from a lump-sum settlement of the malpractice action, when North Carolina, through its state Medicaid program, paid medical and health care expenses on the victim's behalf, the district court's grant of summary judgment to the state is vacated and the case remanded for determination of the proper amount of North Carolina's Medicaid lien, where the North Carolina third-party liability statutes, as applied, failed to comply with federal Medicaid law that limited North Carolina's recovery to settlement proceeds representing payment for medical expenses, and the percentage of the lump-sum settlement allocable to medical expenses had to be determined by judicial determination.

In a suit against a veterinary hospital and veterinarians for malpractice arising out of the death of the plaintiff's horse, the district court's grant of the defendants' motions for summary judgment is affirmed, where: 1) the statute of limitations applicable to claims for veterinary malpractice contained in Code of Civil Procedure section 340(c) applied to the plaintiff's claims; 2) the tolling provisions of Code of Civil Procedure section 364 did not apply to the plaintiff's claims because they were for property damage and did not fall within the meaning of "professional negligence"; and 3) equitable tolling did not apply.

In a product liability action brought after the plaintiff suffered injuries during a tonsillectomy in which a doctor used an electrocautery device powered by a generator manufactured by the defendant, who prevailed in the action, the trial court's denial of the plaintiff's motion for a new trial is affirmed, where improper argument by the defendant's attorney did not result in a miscarriage of justice under article VI, section 13 of the California Constitution because it was not reasonably probable that the plaintiff would have obtained a more favorable verdict in the absence of the argument, and thus any error was harmless.

In a case in which insurers of a nonprofit agency that provides behavioral health and rehabilitation services sought a declaratory judgment that the allegations against the agency and an employee social worker in an underlying suit fell within exclusions to coverage, the district court's grant of the request for declaratory judgment is affirmed, where the policy language precluded coverage for abuse that occurred to anyone in the insureds' "care, custody or control," and the child in the underlying suit was in the care of the insureds as a long-term patient.

Medical malpractice judgment is affirmed where the plaintiff's expert witness is found to be qualified to testify as to the standard of care under state law because he performs the same procedure in the same context at issue.

In an appeal from a judgment of the district court dismissing appellant's tort complaint against his former counsel in postconviction proceedings, judgment is affirmed where the complaints sounds in legal malpractice such that appellant's failure to show actual innocence of the concerned probation violations and to obtain post-violation exoneration of those violations support the trial court's dismissal.

In an appeal from a judgment of the appellate division reversing the trial court's grant of defendant's motion to change venue in a medical malpractice action, judgment is reversed where the five-day extension under CPLR 2103(b)(2) applies to the 15-day time period prescribed by CPLR 511(b) when a defendant serves its demand for change of venue by mail.

In an appeal from a judgment of the trial court dismissing a legal malpractice action brought by a successive estate representative on the ground that the representative lacked standing because he was never a client of the defendant-attorneys, judgment is reversed where: 1) an Oregon representative lacks capacity to sue in California because his authority does not extend beyond Oregon but may seek relief through an ancillary appointment by the California courts; and 2) under both California and Oregon statutory law, plaintiff has standing to sue attorneys who were retained by his predecessor to act on the estate's behalf.

In a suit by pro se plaintiff alleging that defendant committed legal malpractice while representing her in a medical malpractice case in state court by failing to retain an expert, the District Court's dismissal of the complaint is reversed where: 1) Pennsylvania Rule of Civil Procedure 1042.3, requiring the filing of a Certificate of Merit in malpractice cases, is substantive law that federal courts must apply under Erie v. Tompkins, 304 U.S. 64 (1938); and 2) appellant did comply with this substantive law.

In an appeal from a judgment of the trial court granting summary adjudication in favor of the defendants in an action for medical negligence, judgment is affirmed where trial court correctly entered judgment in favor of the Regents because plaintiffs failed to raise a triable issue of fact as to the claims against these defendants, but reversed with respect to defendant-doctor because plaintiffs' expert declaration was admissible and raised triable issues as to defendant's alleged medical negligence.

In an action for medical malpractice, judgment of the trial court granting plaintiff a new trial after vacating a defense summary judgment is affirmed, where order was timely under Code of Civil Procedure section 660 and based on proper grounds.

In a dispute arising from an action for breach of a contingency fee agreement, judgment of the trial court awarding attorney fees after entry of a default judgment for discovery violations is affirmed because a complaint does not have to specify, by dollar amount, the attorney fees that will be incurred and sought in a case ultimately resolved by a default judgment entered as a discovery sanction.

In a dispute arising from an action for legal malpractice, judgment of the district court denying motion to lift bankruptcy protective orders and cross-motion for injunctive relief barring defendant from attacking the validity of a settlement agreement on the grounds of waiver is affirmed where: 1) defendant-law firm failed to make the requisite showing to lift orders; and 2) it was not a party in interest with standing such that its failure to contest the validity of settlement agreement constituted waiver.

In a dispute alleging professional malpractice arising from the drafting of a deficient partnership agreement by the defendant, summary judgment on the ground that action was time-barred is reversed because placement of actual injury upon the execution of the defective agreement was erroneous where CCP section 340.6 (a)(1), tolled the limitations period until plaintiff could establish a cause of action for legal malpractice.

In an attorney disciplinary matter, the recommendation of discipline by Committee of Admissions and Grievances is adopted where an attorney who is the subject of a disciplinary proceeding may only resign from the bar upon obtaining leave of the Court.

In a tort action alleging medical malpractice under Article 1802 of the Puerto Rico Civil Code, summary judgment in favor of defendant is affirmed where plaintiffs could not establish a prima facie claim because they offer no expert evidence establishing the relevant standard of care.

In an action against an accounting firm for professional malpractice and fraud, which was removed from Illinois state court, the district court's dismissal of the action based on pending bankruptcy proceedings is affirmed in part where: 1) an 11 U.S.C. section 304 proceeding is a case for the purposes of subject matter jurisdiction under 28 U.S.C. section 1334(b); and 2) so long as the estate at issue in a section 304 proceeding, wherever located, may conceivably be affected by the state law actions, those state law actions are "related to" the section 304 case. However, the judgment is vacated in part where the district court needed to consider whether abstention was mandatory.

In plaintiff's suit against manufacturers, distributors, and sellers of the Trident-brand ceramic-on-ceramic hip replacement system, claiming that she has been injured by the medical device and that the defendants violated federal law in manufacturing the device, district court's grant of defendants' motion to dismiss under Federal Rule 12(b)(6) of the Federal Rules of Civil Procedure on the ground that plaintiff's common law claims were preempted by federal law, is reversed and remanded as, because plaintiff's claims that she was injured by defendants' alleged violations of federal law are not preempted, her original complaint should not have been dismissed, and even if the original complaint had been defective, the district court abused its discretion by dismissing the action with prejudice and denying plaintiff leave to file an amended complaint.

In plaintiffs' suit against a doctor for the death of their daughter at a water park, claiming that the doctor negligently advised the water park about safety procedures and placement of defibrillators, judgment of the court of appeals is reversed to the extent it affirmed the trial court's order denying the doctor's motion to dismiss where: 1) when the underlying facts are encompassed by provisions of the Texas Medical Liability Act (TMLA) in regard to a defendant, then all claims against that defendant based on those facts must be brought as health care liability claims; and 2) because all the claims against the doctor were based on the same underlying facts, they must be dismissed because plaintiffs did not timely file an expert report.

In plaintiff's suit for medical malpractice against a plastic surgeon claiming that the doctor negligently perforated her viscus and small bowel during a liposuction, resulting in contamination of her abdominal wall, trial court's denial of plaintiff's arbitration demand is affirmed as substantial evidence supports the trial court's factual determination that plaintiff waived her contractual right to arbitrate her medical malpractice dispute by waiting to pursue arbitration until the virtual eve of trial, long after discovery, including expert discovery, had been completed, and the doctor suffered prejudice by losing whatever time and cost benefits could have been gained through arbitration, and by focusing his litigation efforts on a jury trial rather than an arbitration panel.

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