Thursday, June 30, 2011
The District of Columbia Court of Appeals, sitting en banc, has held that a plaintiff who was told that he was HIV positive when he in fact was not, and suffered severe depression during the five years he dealt with the misdiagnosis, has a cause of action for the negligent infliction of emotional distress against the doctor and clinic.
The court expanded the "zone of physical danger" concept generally applied to tort actions:
...the zone of physical danger requirement imposes an unnecessary limitation upon, and is not to be applied indiscriminately in all cases to, claims of emotional distress brought against a defendant who has a relationship with the plaintiff, or has undertaken an obligation to the plaintiff, and whose negligence causes serious emotional distress to the plaintiff. We, therefore, adopt a rule – itself a limited one – that supplements the zone of physical danger test. We hold that a duty to avoid negligent infliction of serious emotional distress will be recognized only where the defendant has an obligation to care for the plaintiff’s emotional well-being or the plaintiff’s emotional well-being is necessarily implicated by the nature of the defendant’s undertaking to or relationship with the plaintiff, and serious emotional distress is especially likely to be caused by the defendant’s negligence. We conclude this is such a case... The court concluded that the doctor-patient relationship created the obligation to avoid the negligent infliction of severe emotional distress. Presumably, the attorney-client relationship would as well. The decision was unanimous. (Mike Frisch)
...the zone of physical danger requirement imposes an unnecessary limitation upon, and is not to be applied indiscriminately in all cases to, claims of emotional distress brought against a defendant who has a relationship with the plaintiff, or has undertaken an obligation to the plaintiff, and whose negligence causes serious emotional distress to the plaintiff. We, therefore, adopt a rule – itself a limited one – that supplements the zone of physical danger test. We hold that a duty to avoid negligent infliction of serious emotional distress will be recognized only where the defendant has an obligation to care for the plaintiff’s emotional well-being or the plaintiff’s emotional well-being is necessarily implicated by the nature of the defendant’s undertaking to or relationship with the plaintiff, and serious emotional distress is especially likely to be caused by the defendant’s negligence.
We conclude this is such a case...
The court concluded that the doctor-patient relationship created the obligation to avoid the negligent infliction of severe emotional distress. Presumably, the attorney-client relationship would as well.
The decision was unanimous. (Mike Frisch)
Monday, June 13, 2011
The Connecticut Appellate Court affirmed sanctions imposed (reprimand, probation and a fine) against a medical doctor on allegations that he had treated and prescribed medications for two minors without ever conducting an examination. The minors were in Nevada.
The court rejected the doctor's contention that his due process rights were violated. The court also rejected the claim that the clear and convincing evidence standard should be applied because that is the burden of proof in attorney discipline proceedings:
The plaintiff’s contention ignores the fact that attorney discipline proceedings, unlike the present matter, are not governed by the [Uniform Administrative Procedure Act]. The statewide grievance committee ‘‘is an arm of the court, and is not a body in which the legislature has reposed general powers of administration of a particular state program with which it has been given statutory authority to act for the state in the implementation of that program.’’ (citation omitted)
Thursday, March 24, 2011
The Delaware Superior Court affirmed a determination of the Bpard of Examiners of Psychologists to place a psychologist on six-months probation for his failure to meet CLE obligations and erroneous assestation that he had done so. He must be supurvised by an approved psychologist and assessed for organizational impairment during the probationary period. (Mike Frisch)
Tuesday, February 8, 2011
Posted by Alan Childress
This is the time of year when I remind readers (and, I hope, Googlers of the phrase law school summer abroad programs in Greece or just "sick of winter") that -- somewhat related to the subject of this blog -- Tulane Law School offers my course June 19-July 8, 2011 in "Comparative Legal Professions" on the beautiful care-free and car-free island of Spetses. In Greece, on the Saronic Gulf of the Mediterranean Sea (the happy part of Greece right now). We offer five other courses as well, including contract theory, conflict of laws, the German legal system, intro to Greek, and marine pollution. We have two other summer schools on the large island of Rhodes (before and after, for instance if you want to combine two as many students do). Classes are in English and admit students from law schools all over the world. Just contact assistant director J. Sayas for more info, at ac 504 and number 865 - 5981 or email jsayas AT tulane.edu. She knows about Spetses and Rhodos too. Website here.
This year the program includes optional ties to the environmental research group Archipelago. Note: Achipelago also sponsors a non-credit internship program that is available to the registrants of the Spetses summer session.
Here is a link to the family-run resort hotel we stay at (amazingly affordable, includes two meals per day) on Spetses: enjoy the view! And links to my course info from past years. Your room looks out on the view left. There is no immediate deadline, but it is best to sign up by early March to ensure the program continues.
Wednesday, December 15, 2010
The Ohio Supreme Court has decided a case involving a discovery dispute in a medical discipline matter. According to the court's web page:
The Supreme Court of Ohio today partially granted and partially denied a writ of mandamus directing the State Medical Board to provide unredacted copies of some of the public records requested by Dr. Mahendra K. Mahajan, a Dayton psychiatrist, relating to a board investigation of Dr. Mahajan.
In a 7-0 per curiam opinion, the Court noted that the medical board provided more than 8,000 pages and several CDs of documents in response to Dr. Mahajan’s records request, and found that all but a handful of the redactions the board had made in documents it provided to Dr. Mahajan were required by law or authorized by exceptions to disclosure in the state’s Public Records Act.
The mandamus action arose from a May 2007 deposition of Dr. Mahajan conducted by one of the medical board’s enforcement attorneys, David Katko. Following that deposition, Dr. Mahajan’s attorney sent a letter to the board’s director complaining that Katko’s conduct during the deposition had been “rude, unprofessional, threatening, and intimidating.”
Following a January 2009 hearing on the disciplinary charges filed against Dr. Mahajan, he requested copies of certain records, including the board’s personnel file for Katko. After the board had provided thousands of pages of documents in response to his initial request, Dr. Mahajan submitted a supplemental request specifically seeking any records received or created by board members or management-level personnel related to Katko’s May 2007 deposition of Dr. Mahajan, and any similar incidents involving Katko.
The board forwarded copies of additional records responsive to the new request. Portions of seven of the documents had been redacted (blacked out or otherwise rendered unreadable). With regard to each of these documents, the board provided a written explanation of its reasons for the redactions. Dr. Mahajan objected to some of the redactions and asked the board to reconsider and provide him with unredacted copies of all of the documents. The board declined to do so, reiterating its prior reasons. Dr. Mahajan then filed an original action in mandamus, asking the Supreme Court to issue a writ requiring the board to provide unredacted copies of the specified documents.
In today’s decision, the Court found that, with very limited exceptions, the board’s redactions from the seven documents sought by Mahajan were proper under various exceptions to the Public Records Act, including exclusions for law enforcement investigatory records, board investigatory records, confidential employee medical records, and confidential board work product including assessments of evidence and discussions of investigative strategy.
The Court identified as error the medical board’s redaction of a an explanatory email sent by Katko to his supervisor on May 17, 2007 discussing Katko’s actions during the May 2007 deposition of Dr. Mahajan. The Court held that the email was not exempt from disclosure as an investigative record because it addressed Katko’s conduct rather than any substantive content of the Mahajan investigation. The Court also found that the board erred by redacting Mahajan’s own name from several documents, on the basis that Mahajan had waived the confidentiality of that information when he initiated the public records request.
The Court concluded: “‘The Public Records Act serves a laudable purpose by ensuring that governmental functions are not conducted behind a shroud of secrecy. However, even in a society where an open government is considered essential to maintaining a properly functioning democracy, not every iota of information is subject to public scrutiny. Certain safeguards are necessary.’ ... The General Assembly has provided these safeguards by balancing competing concerns and providing for certain exemptions from the release of public records pursuant to R.C. 149.43. ... The state medical board has met its burden for establishing the applicability of several of these exemptions. The board acted diligently and appropriately in the vast majority of its redactions to the requested records.”
“Other redactions were not covered by an exemption. Therefore, we grant a writ of mandamus to compel respondent to provide access to an unredacted copy of the May 17, 2007 e-mail, the portions of the May 22, 2007 notes that refer to Mahajan’s name and Katko’s prior deposition of him, and the parts of the May 31, 2007 memorandum and June 2007 e-mails that note Mahajan’s name. In all other respects, we deny the writ. We also deny relator’s request for statutory damages, attorney fees, and oral argument.”
The opinion is linked here. (Mike Frisch)
Monday, December 6, 2010
For those who think that bar discipline is too lenient, try a recent decision of the Maryland Court of Appeals that affirmed the order of an administrative law judge in a medical discipline matter. The charges were brought by the State Board of Physicians against a doctor who had falsely denied in a license renewal application that he had been sued for medical malpractice.
The doctor had claimed that he misunderstood the question and that English was his second language. The court agreed with the ALJ that the doctor was proficient in English. Further, the court found that the false statement to the licensing authority was sufficiently related to the practice of medicine to warrant professional discipline.
The sanction: reprimand, a $5,000 fine, an ethics course and probation. The appeal of the sanction that the court rejected came from the doctor. (Mike Frisch)
Sunday, September 19, 2010
The second Miller-Becker Center for Professional Responsibility Distinguished Lecture in Professional Responsibility is scheduled for Friday, Oct. 29, 2010, at 4:00 P.M. at the University of Akron School of Law. Ronald D. Rotunda, the Day & Dee Henley Chair and Distinguished Professor of Jurisprudence, of Chapman University School of Law, is the Distinguished Lecturer and his presentation is entitled Lawyers: Why We Are Different and Why We Are the Same. Rotunda's presentation, in part, asks: “To what extent do the ethics rules make lawyers different from other professionals?" He is shown right.
This is right on the heels of a great new contribution to the field by the center: its first symposium law review issue on the legal profession, this one on the topic of Lawyers without Borders and Practicing Law in the Electronic Age, 43 Akron L. Rev. 1-1105 (2010), and featuring articles and essays by excellent scholars in those areas. I really appreciate that they mailed one to me and lots of other teachers of legal ethics, and I have it sitting on my desk. Well done.
Thursday, July 22, 2010
Posted by Alan Childress
Lisa Webley is a Reader at the law school of Westminster and a research fellow at the University of London Institute of Advanced Legal Studies (where she also got her PhD); she was just now at Stanford attending the international conference on the legal profession (and I will try to horse-and-hound her into blogging on it). She has published her law-and-society dissertation on the different approaches solicitors versus mediators take toward divorce and custody matters. Their practical and conceptual styles are indeed different, as revealed
by the grounded theory study of their ideologies, training, backgrounds,
ethics, and professional messages. So finds Lisa in Adversarialism and Consensus? The Professions’ Construction of Solicitor and Family Mediator Identity and Role. Her abstract:
This study considers the messages that the Law Society of England and Wales and the UK College of Family Mediators transmit to their members about the professional approach they should adopt in divorce matters. The study employs a grounded theory method to analyse the training, accreditation, best practice statements and codes of conduct generated by the two professional bodies. It examines the extent to which the training, accreditation and codes of conduct of family solicitors and family mediators privilege adversarial or consensus based approaches to divorce for their clients, in the light of statements made around the time of the passage of the Family Law Bill, which suggested a dichotomy in professional approach by these two professional groups. It considers further the nature of professional identity for each of the professional groupings, as constructed through the messages delivered by the professional bodies.
I finally tout a book on-topic to this blog! I helped Lisa publish this as part of the new Dissertation Series of ebooks which I wrote about in Publish Your Dissertation as a Digital Book. Comparative LP expert John Flood (Westminster; U of Miami Law) read that post and commented, and then told Lisa about the series (thanks John!), and she and I worked hard to get this out fast (the tables were a coding nightmare). It is available on Amazon for Kindle and its free apps (and so iPad and BlackBerrys too); on Smashwords in nine different formats (even just PDF, though a pretty one with links, and view online); is featured on the Quid Pro website; and will soon be on Apple iTunes, Barnes & Noble for Nook, and Sony ebookstore.
Wednesday, July 14, 2010
Posted by Alan Childress
A brief follow-up to my post last week on The Common Law, in which I trashed current online and digital versions of the book for being poorly scanned and never proofread, incomplete and unusable. So I published a cheap one that is in fact the words Holmes wrote, mainly for Amazon Kindle and its free apps for iPad, PCs, Mac, BB, and smart phones.
Now, I also published to Kindle (and also ePub for Nook and Apple, a Sony one, and active PDF and simple rtf formats for just computers without apps, all at Smashwords) a much-expanded version, annotated, which includes some 200 of my notes inserted to explain what Holmes meant and underlying legal terms he uses. There is a need for noted-and-demystified versions of many old but still-great books in law, philosophy, and social sciences, and so I welcome manuscript ideas a reader may have. For example, I know Jeff could take some great work by Kant and insert his decoding notes into it, and Patrick S. O'Donnell could do the same for other works of classic philosophy and religion (yes, P, we'd do it in paperback too and kill trees). Mainly this involved my sharing with a reader what I already knew but would be foreign to college students and 1Ls. In the case of Holmes, sometimes that was just translating his words from older dialect that I recognized from growing up with old Southern people! You see annotated Shakespeare and Cervantes, so I welcome proposals for the same in law, etc.
This is also a follow-up to the post we had a couple years back , The Summer Before Law School?, on good books to read the summer between college and the start of 1L. Lots of school websites and others have such lists, including a really extensive and insightful one by Tulane's Susan Krinsky to incoming law students, which includes fun fiction:
To the extent such lists do not include The Common Law, even though it's one of the best law books ever and Holmes surveys the field of basic 1L classes like crim, torts, and contracts (still great on consideration, on versions of crim and tortious intent, and on the reasonable person test), I think it is because the work is considered a tough read. It uses dated language plus some Latin and even Greek, while assuming a familiarity with legal concepts that 1L readers would not yet have (e.g., what's "an action in case"? a law-bound student would wonder). I hope that I have decoded it and accessibilized it for that use, and for others in college and law school classes, as the book is actually very helpful and understandable to a wide audience if there are just some little insertions and pointers along the way. The annotated edition is cheap, too, and includes simple PDF and online versions.
UPDATE: Since this site is linking all the front matter and into chapter one as a free sample, have at it. It includes my foreword and the bio of Holmes, his extensive plan for the book, and three of my annotations in ch. 1 so you can see what they do for it.
Also now out at Smashwords are three great books I have brought back from paperback purgatory to go ebook: Jerold Auerbach, Jacob's Voices: Reflections of a Wandering American Jew; Joel Handler, Law and the Search for Community; Kitty Calavita, Inside the State: The Bracero Program, Immigration and the INS. These will be on Amazon by next week. UPDATE 2: They are now on Amazon and links are Auerbach . . . Calavita . . . Handler. See also Lisa Webley and her Dissertation on legal profession in UK in divorce cases, at Amazon and Smashy.
Friday, May 14, 2010
The Maryland Court of Appeals held that a physician had not been convicted of a crime of moral turpitude and thus was entitled to an evidentiary hearing prior to license revocation. The physician was the subject of two criminal complaints alleging fourth degree sexual offenses against patients during examinations. The physician entered an Alford plea to a lesser charge of second degree assault and expresssly denied that the prosecutor's proffer of facts was accurate. The court accepted the plea and granted probation before judgment.
The State Board of Physicians summarily revoked his license to practice medicine, based on its conclusion that the crime involved moral turpitude. The court here disagreed that the conviction involved such an offense, disagreeing with the State Board that the record established the sexual abuse of the patients. The plea to the lesser offense did not conclusively establish guilt of the greater offense, in light of the physician's explicit denial of the proffer at the plea proceeding: "A stipulation as to testimony is not an admission of fact." (Mike Frisch)
Thursday, May 6, 2010
The web page of the Ohio Supreme Court reports:
(May 5, 2010) The Supreme Court of Ohio ruled today that a nurse employed in a hospital, who steals drugs in the course of her employment, does not occupy a “position of trust” and is not categorically ineligible for Intervention in Lieu of Conviction (ILC).
The Court’s 6-0 decision, authored by Justice Maureen O’Connor, affirmed a ruling by the 9th District Court of Appeals.
R.C. 2951.041 allows Ohio trial courts, at their discretion, to refer a first-time offender charged with a qualifying offense who meets certain requirements to a period of rehabilitation if the court has reason to believe that drug or alcohol usage was a factor leading to the offense. If the defendant successfully completes the intervention plan, the trial court dismisses the proceedings against the offender without a finding of guilt and may seal the records relating to the offense. Among other requirements, to be eligible for ILC, an offender must qualify for community control sanctions (rather than a prison sentence) under R.C. 2929.13(B)(2)(b). A separate statutory provision, R.C. 2929.13(B)(1) lists several findings that disqualify an offender from eligibility for sentencing under R.C. 2929.13(B)(2)(b) and, therefore, for placement in an ILC program. One of these findings, set forth in R.C. 2929.13(B)(1)(d), bars from eligibility an offender who “held a public office or position of trust and [whose] offense related to that office or position.”
In this case nurse Sally Massien was charged with taking drugs from the Akron hospital where she was employed. As a first-time offender, she requested ILC. The trial court granted Massien’s request over the objection of the Summit County prosecutor’s office. The prosecutor appealed, arguing that because Massien was entrusted with special access to drugs as a nurse, and had abused that trust by taking drugs illegally in the course of her employment, she violated a “position of trust,” and was therefore barred from participation in an ILC program. On review, the 9th District Court of Appeals affirmed the trial court’s judgment that Massien did not occupy a position of trust for purposes of the sentencing statute, and the trial court had not erred in finding her eligible for ILC.
The 9th District subsequently certified that its decision in this case was in conflict with State v. France, a 2006 decision in which the 10th District Court of Appeals held that a nurse who stole drugs in the course of her employment at a hospital had abused a position of trust and was ineligible for ILC. The Supreme Court agreed to review the case to resolve the conflict between appellate districts.
Writing for the Court in today’s decision, Justice O’Connor noted that a number of Ohio’s district courts have interpreted the phrase “position of trust,” as used in R.C. 2929.13(B)(1)(d), and have reached conflicting results. While some districts have construed that language narrowly to apply only to government officials and public servants, other courts have construed it more broadly to apply to virtually any public or private individual whose offense involved a breach of trust.
Justice O’Connor wrote: “By including the phrase ‘position of trust’ in R.C. 2929.13(B)(1)(d) without limitation, the General Assembly evidenced its intent not to limit its application to public officials. However, we do not believe that the legislature intended the phrase to apply to all individuals who breach any private expectation of trust.” After reviewing the specific statutory language at issue, and analyzing it in context with eight parallel provisions of R.C. 2929.13(B)(1) that each identify a specific aggravating circumstance that justifies a sentence of imprisonment rather than community control, she wrote: “Each sentencing factor crafted by the legislature applies to a narrow aggravating circumstance that may justify the imposition of a prison sentence rather than the preferred community control for fourth- and fifth-degree felonies. ... Given the narrow application of the sentencing factors identified in R.C. 2929.13(B)(1) and (B)(1)(d), ... we believe that the General Assembly intended a limited application of the phrase ‘position of trust’ in R.C. 2929.13(B)(1)(d). Limiting the application of the section to private individuals who occupy a special relationship of trust and confidence equivalent to a fiduciary relationship and whose offense relates to that fiduciary relationship prevents the disqualification of persons who are not clearly meant to be excluded from ILC.”
Applying this standard, the court considered whether Massien occupied a special relationship of trust and confidence equivalent to a fiduciary relationship as a result of her employment as a nurse. In analyzing the relationship of a nurse with a hospital employer, Justice O’Connor quoted earlier court decisions defining a fiduciary as “a person having a duty, created by his undertaking, to act primarily for the benefit of another in matters connected with his undertaking.” She wrote: “Nurses are persons of ‘superior knowledge and skill,’ who have a duty to their patients to employ the degree of care, skill, and diligence that a nurse of ordinary care should employ in like circumstances. ... However, the duty of care imposed by law on a nurse toward his or her patients does not create a fiduciary relationship between the nurse and his or her employer-hospital. Further, a nurse’s job duties are not sufficiently discretionary to transform the relationship with his or her employer-hospital into a fiduciary relatio
“A nurse occupies a necessary and important supportive role in caring for patients and administering medication. However, as is illustrated by the respective duties of nurses and physicians, discretion relating to the diagnosis and treatment of a patient is statutorily in the hands of the physician, not the nurse. A nurse employed by a hospital does not occupy a position of discretion and, therefore, does not occupy a fiduciary relationship. Because a nurse is not a fiduciary by virtue of his or her employment with a hospital, he or she does not occupy a ‘position of trust’ for the purpose of R.C. 2929.13(B)(1)(d). Therefore, a nurse who steals drugs from the hospital in which he or she is employed is not categorically ineligible for ILC by virtue of his or her employment.”
Justice O’Connor’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Terrence O’Donnell and Judith Ann Lanzinger.
Justice Robert R. Cupp concurred with the majority judgment, but entered a separate opinion stating that in his view the “position of trust” language relied upon by the state in this case applies only to public officials, public servants and those holding public positions of trust. He wrote: “R.C. 2929.13(B)(1)(d) addresses three situations. It is the first category that is at issue in this case: offenders who ‘held a public office or position of trust and the offense related to that office or position.’ The statute uses the phrase ‘a public office or position of trust,’ indicating that the ‘office’ and the ‘position of trust’ are both of a public nature. In this regard, the article ‘a’ operates as a grammatical signal that both ‘office’ and ‘position of trust’ are parallel terms modified by ‘public.’ ... I do not believe that positions of trust held by private individuals which positions are not in the nature of a public trust are included within the first category listed in R.C. 2929.13(B)(1)(d).”
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.
The opinion is linked here. (Mike Frisch)
Saturday, April 24, 2010
The Idaho Supreme Court affirmed sanctions imposed by the State Board of Accountancy against an accountant who had engaged in a personal relationship with a client while jointly advising the client and her spouse in the preparation of a joint tax return. The relationship had started before an extension was obtained and the return filed. The ethical complaint was filed by the spouse. The board ordered that the accountant pay a fine and costs. The board also required the accountant to take four hours of ethics training.
The court found that the board had reasonably concluded that the conduct ran afoul of ethical rules governing conflicts of interest. However, the board was not entitled to attorneys fees for the prosecution of the charges of misconduct. (Mike Frisch)
Wednesday, April 7, 2010
The New Jersey Supreme Court has reversed a decision of the Appellate Division holding that discussions between a person later charged with sexual assault and a Pastor that he had known for over thirty years were not protected by the cleric-penitent privilege. Applying a standard of "objective reasonableness", the court concluded that the communications were privileged.
The defendant's wife had told the Pastor that the defendant had abused his two daughters. The wife and daughters were members of the Pastor's church; the defendant was not. The Pastor met the defendant and they took a walk to a public play area to talk. When the defendant tried to blame his wife, the Pastor said "if it was [i]n the days of the law of the bible...I'd kill you myself because I think what you've done is deserving of death." The defendant did not directly admit the allegations but sought the Pastor's help and to be baptized, which the Pastor declined.
The trial court declined to admit the evidence but the Appellate Division reversed. Here, the court concludes that "a reasonable penitent could have concluded that [the Pastor] was serving in a [spiritual adviser] capacity." By the Pastor's invoking biblical law and hearing a plea for help, the privilege came into being.
Justice Rivera-Soto dissented: "...the majority has adopted a rule that hermetically insulates the cleric-penitent privilege from its origins, eschews the privilege's clear tradition, and ignores the statutory mandate." (Mike Frisch)
Wednesday, March 10, 2010
Posted by Alan Childress
This is the time of year when I remind readers (and, I hope, Googlers of the phrase law school summer abroad programs in Greece or law study summer school,near Athens) that -- somewhat related to the subject of this blog -- Tulane Law School offers a course June 20-July 9, 2010 in "Comparative Legal Professions and Ethics" on the beautiful care-free and car-free island of Spetses. In Greece, on the Saronic Gulf of the Mediterranean Sea. We offer five other courses as well, including contract theory, comparative torts, intro to Greek, and control of product safety in the EU. We have two other summer schools on the large island of Rhodes (before and after, for instance if you want to combine two as many students do). Classes are in English and admit students from law schools all over. Just contact assistant director J. Sayas for more info, at ac 504 and number 865 - 5981 or email jsayas AT tulane.edu. She knows about Spetses and Rhodos. Here is a link to the resort hotel we stay at (pretty cheap, includes meals) on Spetses: enjoy the view. And links to my course info from past years. Your room looks out on the view left. There is no immediate deadline, but it is best to sign up in March to ensure the program continues.
Thursday, February 11, 2010
Posted, written, directed, produced by, and starring, Jeff Lipshaw
I hope you have the point. I have decided that the article I've been working on (February is the hardest month, isn't it?) has, sometime in the last several days, passed not only the point of minimal coherence, but is indeed ready to leave the womb, sink or swim, fend for itself. I am hoping it takes care of me in my old age. Seriously, folks (ta ta boom), The Venn Diagram of Business Lawyering Judgments: Toward a Theory of Practical Metadisciplinarity is up on SSRN (in the spirit of "tomorrow's research today, not completely complete, but getting there, subject to post-production), now that I've decided what to leave on the cutting room floor. It is the basis of the last part of my book-to-be (in utero), Lawyering and the Mystery of Judgment.
If you get the idea that metaphors have something to do with the point, you win the kewpie doll. What I've tried to do is exploit what is my niche - bridging the real world and the academy - and it is recursive in exactly the way I tend to think of the world: how do we make judgments that bridge or fall between disciplines? Those are interdisciplinary judgments, but is there a skill that focuses on those kinds of judgments, meaning that we are dealing with an even higher order concept, namely metadisciplinarity? Which academic department grants a Ph.D. in that? (The fact that TypePad has just put a dotted red line under metadisciplinarity makes me hopeful I've coined a term!) What I have tried to do is spice the theory with many real world examples, admittedly anecdotal, but also, I think, typical. I will look forward to comments, because I have tried to be provocative, especially with regard to the pitfalls of "thinking like a lawyer", and the education that takes us there.
The abstract follows the fold.
February 11, 2010 in Abstracts Highlights - Academic Articles on the Legal Profession, Comparative Professions, General Counsel, Law & Business, Law & Society, Lipshaw, Straddling the Fence, The Practice | Permalink | Comments (0) | TrackBack (0)
Wednesday, February 10, 2010
In a medical malpractice action, the plaintiff must establish the existence of a doctor-patient relationship with the defendant physician, which the Oklahoma Supreme Court held had not been established when the treating doctor consulted with and relied on a second (sued) doctor. The court concluded:
A medical malpractice action is one of negligence wherein the duty is born from a contractual relationship. In a medical malpractice action, the plaintiff must prove a physician-patient relationship in order to establish a duty owed by the defendant. A telephone conversation between a non-treating physician and the treating physician concerning the patient, even when the treating physician relies on the non-treating physician's opinion, without more, is insufficient to establish a physician-patient relationship. Based on the record before us, we conclude that Dr. Schlinke did not agree to or undertake to treat Crawford or Shelby and did not form a physician-patient relationship with the plaintiffs as a matter of law.
The court reversed the court of appeals and concluded that the district court had properly granted summary judgment in favor of the non-treating physician. (Mike Frisch)
Sunday, January 3, 2010
The Iowa Court of Appeals reversed and remanded an order of professional discipline imposed by the Iowa Board of Medicine, concluding that the defense of laches had been established. The alleged incident of sexual abuse of a minor patient occurred in 1973. The complaint was received in 1998. An initial investigation found that "nothing inappropriate" had happened. The doctor was not notified of the complaint until 2004. Charges were filed in April 2006. The board imposed a $10,000 fine, five years probation and ordered that the doctor see minor patients only with a chaperone. On review, the district court had found the delay was "not ideal" but nonetheless affirmed the board's discipline.
The court here found that the delay was both unreasonable and that the doctor was prejudiced as a result. He had destroyed his records and the records of the alleged victim's therapist also were no longer available. Further, the alleged victim's father had died and mother could not testify due to her health. The mother's deposition was admitted, which deprived the accused of the ability to cross-examine her.
The remand order directs that the charges be dismissed by the district court. (Mike Frisch)
Friday, December 11, 2009
Authority Arguers (Litigating Lawyers) Versus Authority Creators (Transactional Lawyers): It's Still All Outside-In
Posted by Jeff Lipshaw
Some time ago, I wrote an article, largely in reaction to an article Richard Posner had written on contract interpretation, suggesting that there was far less connection than commonly expected by lawyers between a “mutual intention of the parties” supposedly embodied in even a heavily negotiated contract and subsequent colorable disputes involving interpretation of that same contract (see The Bewitchment of Intelligence). Having immersed myself for the last several months in scholarship (such as it is) on consciousness, judgment, and wisdom, I now realize that Bewitchment merely took on one particular manifestation of the objective, rational model that is the teaching, scholarship, and practice of American law.
I am prepared to expand the thesis. I will defer exposition of my own articulation of the difference between arguments from authority and arguments from merit (in process) to Professor Geoffrey Samuel's (Kent, left) more sociological exposition of the same point: the reason it is hard to take law seriously as a “science” (and, I would add, the reason the explanatory so often blurs into the normative) is that law is, and has always has been, based on an “authority paradigm,” more akin to theology than to science. The authority paradigm is the key thing, because authority must come from somewhere: from the standpoint of mind, authority is "outside-in." That distinguishes it from wisdom and judgment, which, from the standpoint of mind, are "inside-out." (Pardon my Kantian tendencies here, but outside-in strikes me as legislating, or heteronomous, while inside-out strikes me as self-legislating, or autonomous.)
Let me bring this back to the practice of lawyering, rather than just the theory of law. We are in the midst of working through our curriculum on transactional skills, and the first building block is, invariably, “contract drafting.” I realize I am treading close to heresy here, and I don’t intend to suggest that contract drafting isn’t one of the transactional lawyer’s core skills. But it dawned on me (again) this morning, as I was reading an essay by Laura Dunham (University of St. Thomas, right) on business ethics in entrepreneurship, that even contract drafting (as a lawyering skill) fails to get at the critical difference between judgment and lawyering. Most of what lawyers think and do (at least classically) either in the litigation or the transactional setting constitutes a category error when it comes to the exercise of judgment (in the everyday and not judicial sense). As I argued in Objectivity and Subjectivity in Contract Law, the fundamental dividing line as between promise and contract doesn’t have to do with efficiency or morality; it has to do with objective versus subjective, or public versus private, or (perhaps?) inside-out versus outside-in.
The paradox of law in the litigation context is that both parties are praying to the same god for victory in the name of justice. The Europeans (like Luhmann or Derrida - at least in the latter's views on justice) expose an uncomfortable possibility: it is not an appeal to justice; it is an appeal to authority with the patina of justice. That’s what we teach first year lawyers: how to make an argument - the best ones being those that satisfy the Dworkinian standard of integrity: fit and justification (i.e., they give the best appearance of being not only just, but consistent with authority). Contract drafters aren’t authority arguers; they are authority creators (in the sense of the private law that is the law of contracts). There is no real connection between the contract and the later dispute (despite the arguments of Judge Posner, Professors Schwartz and Scott, and other rationalists), except in the sense that words that were written will come to constitute whatever “law” there is.
Judgment and wisdom, on the other hand, require that we step back from the authority paradigm (and perhaps also from the self-interest paradigm). That’s the quality that comes after first year doctrine, contract drafting, and deal skills. It means somehow teaching the inside-out rather than the outside-in. Now here’s the tough question: what are the academic and professional bona fides for teaching that advanced course?
December 11, 2009 in Abstracts Highlights - Academic Articles on the Legal Profession, Comparative Professions, Law & Society, Straddling the Fence, The Practice | Permalink | Comments (1) | TrackBack (0)
Wednesday, November 18, 2009
The North Dakota Supreme Court has held that allegations that a psychiatrist who testified as an expert witness violated ethical precepts went to the weight, rather than the admissibility, of the evidence. The testimony was offered in a proceeding that involved the possible release of a sexually dangerous individual. The court concluded:
The district court did not determine whether Dr. Coombs violated the American Psychological Association's Ethical Principles of Psychologists and Code of Conduct, and we will not decide this issue for the first instance on appeal. Whether Dr. Coombs violated the ethical rules of his profession regarding conflicts of interest has no bearing on the admissibility of his testimony. Rather, infirmity in a psychologist's testimony affects the weight given his opinion, but not its admissibility.
The contention was the the psychiatrist had a conflict of interest as a result of his role as both treating doctor and expert witness. (Mike Frisch)
Tuesday, November 10, 2009
Posted by Alan Childress
Sida Liu (Wisconsin-Madison [sociology]) and Ethan Michelson (Indiana-Bloomington [sociology and recently affiliated with the Maurer School of Law program in global legal professions, which also sports our coblogguist Bill Henderson]) have completed an exhaustive nine-year follow-up to Ethan's 2000 survey of the legal profession in China. Results of the newest study are linked here. Ethan reports, "Our preliminary findings clearly suggest that 'the more things change the more they stay the same.' ” The report is in English and also Mandarin, entitled 关于中国法律服务工作环境的问卷调查.