Friday, September 16, 2016

Ohio Supreme Court clarifies the meaning of the state's Good Samaritan statute

About two weeks ago, the Ohio Supreme Court issued an important opinion interpreting the state’s “Good Samaritan statute,” a phrase that, as I am sure you know, refers to statutes to provide immunity to people who cause injuries while trying to help others under circumstances where there is no affirmative duty to do so.  The case is called Carter v. Reese and you can read the opinion here.

Although most, if not all, states have enacted Good Samaritan statutes, their terms vary considerably from state to state. In some, they apply only to certain members of the medical and other related professions. This is so because while the goal of the statute is to encourage people who don’t have a duty to help to try to help, the public policy is to encourage only those who know what they are doing when it comes to providing emergency medical help. In other states, on the other hand, the statutes are more general and apply to everyone. In those states it has been decided that it is better to encourage people to help even if they are not trained to do so. Two other issues about which states differ are the definition of an “emergency” and the definition of the type of “care” involve.

Asked to interpret the statute in Ohio, which states that “No person shall be liable in civil damages for administering emergency care or treatment at the scene of an emergency. . . , for acts performed at the scene of such emergency, unless such acts constitute willful or wanton misconduct,” the Court explained,
This case presents our court with two separate questions involving the legislative intent behind Ohio’s Good Samaritan statute. First, what did the General Assembly intend by using the phrase “no person shall be liable in civil damages”—did it intend to include only health care professionals who administer emergency care or treatment at the scene of an emergency, or, more broadly, to include any person who administers emergency care or treatment at the scene of an emergency? 

Second, what did the General Assembly intend by using the phrase “administering emergency care”—did it intend to limit emergency care to only the administration of medical care, or, did it intend to include all forms of care administered at the scene of an emergency?
The Court’s conclusion:
Ohio’s  Good  Samaritan  statute  applies  to  any  person  who administers emergency care or treatment at the scene of an emergency including but not limited to health care professionals. Moreover, the phrase “administering emergency care” in the statute is not limited to medical acts and includes rendering medical and any other form of assistance to the safety and well-being of another when the result of an unforeseen combination of circumstances calls for immediate action.  
Two Justices (O’Connor and Lanzinger) agreed with the majority’s holding that the statute applies to any person, but dissented as to the definition of “emergency” as “an unforeseen combination of circumstances.” They argued that the definition of an “emergency” should be “sudden events or circumstances that require urgent or immediate attention or action,” regardless of whether the events were foreseeable.

Saturday, September 3, 2016

Movement afoot to prevent a vote on Arkansas referendum that would cap attorney fees and damages in medical cases

The ABA Journal online is reporting that two lawsuits have been filed this week to block an Arkansas ballot referendum that would cap non-economic damages and attorney fees in medical injury cases.  The state’s Bar Association also opposes the proposed measure which would require legislators to create a cap for non-economic damages in medical lawsuits against health-care providers of at least $250,000, and would limit contingency fees to one-third of any recovery after all costs of the litigation are deducted.

Sunday, August 28, 2016

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Friday, August 12, 2016

Podcast: Legal issues related to Pokemon Go

Pokemon Go, the latest craze that has millions of people walking around using their phones to find and "capture" pocket monsters, has generated much attention this summer.  And, as it happens frequently, the use of the app has raised a number of legal issues.  Some of the issues are:  possible tort liability for injuries caused by, or to, people who are playing the game, issues related to trespass into private property, and issues related to nuisance.

So, to help you sort out some of these issues, Lawyer2Lawyer has posted a podcast on the legal issues related to Pokemon Go.  You can listen to it by clicking on the play button below, or if you can't see the button, by going here.

Tuesday, August 9, 2016

Parents of two Americans killed in Benghazi sue Hillary Clinton for wrongful death

NPR is reporting that the parents of two Americans killed in Benghazi, Libya, are suing Hillary Clinton for wrongful death, alleging the 2012 attack "was directly and proximately caused" by the then-secretary of state's mishandling of government secrets.  Even though none of the many Congressional investigations nor the FBI investigation found any proof that the attack was due to access to information in Clinton's emails, the lawsuit argues that Islamic terrorists were able to track the movements of Ambassador Chris Stevens and plot the deadly siege because of Clinton's use of a personal email server to conduct government business.

Here is a copy of the complaint. The main argument is this:
It is highly probable, given Defendant Clinton’s history of reckless handling of classified information, that Defendant Clinton, as Secretary of State, sent and received information about Ambassador Christopher Stevens and thus the U.S. Department of State activities and covert operations that the deceased were a part of in Benghazi, Libya. This information was compromised from the second that it left Defendant Clinton’s private e-mail server and easily found its way to foreign powers including, but not limited to Russia, Iran, China, and North Korea. As a direct result of Defendant Clinton’s reckless handling of this classified, sensitive information, Islamic terrorists were able to obtain the whereabouts of Ambassador Christopher Stevens and thus the U.S. State Department and covert and other government operations in Benghazi, Libya and subsequently orchestrate, plan, and execute the now infamous September 11, 2012 attack.
In the section on "facts" (presumably the factual basis for the complaint), the plaintiffs affirm that "Islamic terrorists obtained the information sent and received by Defendant Clinton about the location of Ambassador Christopher Stevens and thus the U.S. Department of State and the covert CIA and other government operation s in Benghazi and used it to plan, orchestrate, and carry out the horrific and devastating attack on the American diplomatic compound in Benghazi, Libya on September 11, 2012 (“Benghazi Attack”), resulting in the death of four Americans,..."  

Now, this is a very different type of statement.  This is an affirmative statement of fact, which, presumably, the plaintiffs will be able to prove.  Is there any evidence that what is alleged here is true?   Not according to any of the investigations I have heard of, but I guess it is possible there is information out there I am not aware of.  Are you?  Let me know.

If there is no basis in law or fact for the complaint, this is a frivolous lawsuit, and I think it will be dismissed in due time.  The only question in my mind is whether the lawyer who brought it will be sanctioned for violating the ethical duty, and procedural rules, against bringing frivolous claims.  According to Above the Law, the lawyer "has been banned from multiple judges’ courtrooms" and has orchestrated other politically motivated legal stunts, including a deportation petition against President Obama, which claimed the president was born in Kenya; alleging the Clintons murdered White House associates in the 90s; and filing lawsuits accusing the Clintons of racketeering.

For more go to NPR or Slate

Sunday, July 24, 2016

Court of Appeals for the 2nd Circuit holds GM can be liable for injuries caused before it filed for bankruptcy

Last year I wrote about the possibility that a large number of lawsuits filed against General Motors could be dismissed as a result of the fact that GM filed for bankruptcy in 2009.  To make a long story short, the issue was whether the “New GM” (after bankruptcy) would be responsible for the conduct of the “Old GM” (pre bankruptcy).  Go here for links to my older posts on this question. 

The issue is now back in the news because about 10 days ago, the Court of Appeals for the Second Circuit has decided that General Motors can't use its 2009 bankruptcy to fend off lawsuits over faulty and dangerous ignition switches exposes the automaker to billions in additional liabilities.  The Associated Press has the story here.   The Pop Tort has a comment on it here.

Thursday, July 21, 2016

Washington State Supreme Court holds plaintiff has to show actual innocence in malpractice claim against former criminal defense lawyer

Back in February I reported (here) that the two most recent decisions on whether a convicted criminal defendant had to prove actual innocence in order to recover for malpractice against his or her former lawyer had broken away from the majority view on the issue.  The majority view is that the plaintiff does have to obtain post conviction relief and prove that he or she was actually innocent of the crime for which they were convicted. Yet cases in Kansas and Iowa recently held otherwise.

Now comes news that the Washington State Supreme Court has reversed the trend and has held that a criminal defendant must establish actual innocence to sue the defense attorney for malpractice.  The case is called Piris v Kitching and you can read the opinion here.  The Legal Profession blog has more details here.

One Justice dissented in Piris, making what I think is a persuasive argument.  Interestingly, the argument is not that plaintiffs should not have to show actual innocence in all cases, but that it was improper to use that "rule" in this particular case because the plaintiff had already obtained post conviction relief.
Christopher Piris successfully obtained postconviction relief from a miscalculated sentence. But due to alleged attorney negligence, he was not timely resentenced and he spent more time imprisoned than his corrected sentence authorized. The majority holds that Piris cannot pursue malpractice claims against his defense attorneys unless he proves he is actually innocent of the underlying charges. I disagree. When a client wins postconviction relief for resentencing and attorney negligence results in the client's excessive imprisonment because the client did not timely receive the benefit of resentencing, it is no excuse to say that the client was subject to some imprisonment. Extending the "actual innocence rule" to the unique circumstances of this case serves only to perpetuate an injustice. I respectfully dissent...
In other words, the plaintiff in the malpractice case (defendant in the original criminal case) endured a longer stay in jail (more than a year) because of the attorney's conduct.  Yet the court says he was not entitled to a remedy because he was "due" some time in jail anyway.  The fact that the attorney's conduct caused him to suffer more than he was legally "due" is irrelevant to the majority.  I agree with the dissent in this case.  This view is not justified.  It allows for an injustice to go unpunished and gives a pass to an attorney whose conduct clearly caused injury to the client.  I don't see why it makes sense to give the attorney such a free pass.