Common Malpractice Traps in a PI Practice

10-16-2013 12-37-48 PMPersonal injury generates the most frequent and costly legal malpractice claims in Oregon.

If you are a PI practitioner, watch out for these common traps:

Naming the Wrong Defendant
A thorough investigation of your client’s claim is essential.  Seek out corroborating documentation of the facts.  Take special care to properly identify parties – especially when using the
Business Registry to search for an assumed business name or corporate entity. (Many names are similar.) File your complaint well before the statute expires.  If you later discover that you misidentified the defendant, you should be able to file an amended complaint.

Omitting a Defendant
Even if you believe that you conducted a thorough pre-filing investigation of your client’s claim, it is still possible to miss a defendant.  Here is an example:  Your client is crossing the street and is struck by a car in the cross walk.  In working up your client’s claim, you instruct your investigator to interview the driver who is not represented.  Based on the statement taken by your investigator, the case appears straightforward:  pedestrian versus driver.  You file suit, naming the driver.  In the course of depositions, after the statute of limitations has run, you discover the driver was performing a work-related errand for her employer at the time of the collision.  You failed to name the employer as an additional defendant.  There are several lessons to learn from this scenario.  One of the most important is to file early!  If you learn of a second defendant before the statute runs, file an amended complaint.  Also take the time to review scenarios like this with your investigator and be sure he or she has adequate direction from you on how to conduct interviews.

Suing a Defendant who is Deceased
Failure to discover that the defendant passed away does not toll the statute of limitations.  Conduct a records search prior to filing.  Use resources like the
Oregon Judicial Information Network (OJIN) or Accurint to check court and public records.  If a probate estate has been established, name the estate as the defendant and serve the Personal Representative.

Not Knowing the Law
Claims involving minors often trip up practitioners.  Many believe that minority automatically tolls all statutes and tort claim filings until the minor reaches the age of 18.  This is not the case.  Do your research!  Use the
PLF’s Oregon Statutory Time Limitations handbook as a resource to verify the applicable deadline.  Every Oregon lawyer received a copy of this handbook in 2010.  A PDF of the book is available for download on the PLF Web site.

Missing the Statute of Limitations
The first defense in avoiding a blown statute is to know the law.  As suggested above, use the
PLF’s Oregon Statutory Time Limitations handbook as a resource.  Even if you think you know the statute of limitations, check again.  The second defense is to establish reliable calendaring and file tickling systems that remind you of upcoming deadlines and prompt you to move cases forward.  Consult the PLF’s docketing and calendaring practice aids available online or download and review our book, A Guide to Setting Up and Running Your Law Office, also available online.  Third, always file well in advance of the statute.  Am I beginning to sound like a broken record?  Filing early allows time to recover from the mistakes described above.

Failing to Timely Complete Service
Put the summons and complaint in the hands of your process server on the day you file your complaint or as soon thereafter as possible.  Create a reminder or task to follow-up with your process server 10 days later.  If the defendant is avoiding service or if your server is having difficulty locating the defendant, you need to know early on so you can pursue alternate service methods.  If the defendant is not personally served, be sure you comply with any additional steps that must be taken.  For example, if substituted or office service is obtained, follow-up service by first class mail is required.  Lastly, remember that ALL service steps, including mailings, must be completed within Oregon’s 60 day window for service of process.

Other Resources for Personal Injury Practitioners
The PLF offers 19 litigation/personal injury forms on our Web site, including a civil litigation checklist, service of process checklist, common civil litigation time limitations, and a settlement/judgment disbursal checklist.  We also have many articles dedicated to helping PI practitioners avoid potential malpractice.  An archive of PLF In Brief articles dating back to the year 2000 is available on the PLF Web site.  Additionally, in May 2013 we held Malpractice Traps for Lawyers Handling Personal Injury Cases.  This CLE and the accompanying handout are available to order on the PLF Web site.

Call the PLF for Help 1-800-452-1639
If any of the above happens to you, or if you are concerned for any reason that you may have committed malpractice, call our office.  Ask to speak to one of the claims attorneys on call. 

If you would like assistance with setting up a reliable calendaring or file tickling system, ask to speak to a PLF practice management advisor. 

All PLF services are confidential.

All Rights Reserved – Beverly Michaelis [2013]

Learning the Ropes 2013

Are you new to private practice? Then I have just the ticket for you!

Attend our three day conference – Learning the Ropes: A Practical Skills & Ethics Workshop – for a mere $65.  Attendance at the full program satisfies the MCLE requirements for new admittees’ first reporting period.

Choose from these concurrent sessions:

  • Domestic Relations or Criminal Law
  • Tort Litigation or Estate Planning
  • Civil Motion Practice or Bankruptcy
  • Creating a Firm or Joining a Firm

Can’t decide?  All tracks are recorded for later viewing at no charge.

Plenary sessions include:

  • How to Develop a Successful Practice and Avoid Legal Malpractice
  • Client Communication and Other Practice Management Survival Tips
  • Alternative Dispute Resolution
  • The Ethics of Practice Management
  • Recognizing Child Abuse and Fulfilling Your Duty to Report
  • Negotiation Tips, Tricks, Traps, and Tools
  • Courtroom Do’s and Don’ts
  • Employment Law and Conscientious Communication
  • Bridging the Cultural Gap

Day 1 includes a “Meet the Judges” luncheon.  Day 2 features a networking luncheon with bar leaders and respected practitioners in the fields of Appeals, Criminal Law, Employment Law, Intellectual Property, Business Litigation, Debtor/Creditor Law, Estate Planning, Litigation, Business Transactions, Elder Law, Family Law, and Real Estate.

All meals, including the luncheons, are included in your $65 workshop fee.  The program is at the Oregon Convention Center November 6-8, 2013.  Register here or visit the PLF Web site > Upcoming Seminars (under the heading Loss Prevention – CLE).  Sign up early.  Space is limited!

Copyright 2013 Beverly Michaelis

Lawyers: What You Don’t Know About HIPAA Could Hurt You

Do you receive, use, store, or transmit personal health information (PHI) on behalf of clients?  If so, you are a “business associate” under HIPAA. 

As a business associate, lawyers must implement privacy and security programs to protect against improper use or disclosure of client health information. They are also obliged to ensure that their subcontractors (digital print shops, cloud providers, legal nurse consultants, medical experts) follow HIPAA rules.

Practice Areas Affected by HIPAA Regulations

HIPAA has the potential of touching more than the obvious practice areas:

  • Personal Injury
  • Insurance Defense
  • Social Security
  • Workers Compensation
  • Medical Malpractice

Any lawyer who reviews or obtains inforamtion concerning payment for health care is also a business associate under the act.  This may affect lawyers who practice in:

  • Conservatorships and Guardianships
  • Estate Planning
  • Probate
  • Business Law
  • Insurance Law
  • Bankruptcy
  • Debt Collection

For more information on how HIPAA may apply to your law firm, see Kelly T. Hagan, “Business Associate, Esq.: HIPAA’s New Normal,” in the September 2013 issue of In Brief, available on the PLF Web site > In Brief.

Hagan recommends lawyers take the following steps now:

  1. Identify Privacy and Security Officials. This is not only required by rule, it places responsibility with identified persons. So long as everyone is responsible, no one is.
  2. Document a Risk Analysis. Again, this is required, not simply a good idea. The firm may wish to take this on, or may look to compliance professionals for assistance.
  3. Focus on Mobile Devices. The OCR hates PDAs. Data breaches resulting from stolen or misplaced laptops, iPhones, or Blackberries with PHI on them or accessible through them are a recurring breach scenario.
  4. Compile Existing Policies and Procedures. We all have policies and procedures for keeping files safe and secure. You may be surprised at how far along you already are. You won’t know what is left to be done until you have all of your explicit materials in one place and can compare them to your legal obligations.

The Multnomah Bar Association is offering a CLE on October 17 entitled HIPAA Omnibus Rule Compliance Checklist – For Law Firms and Other Entities that Fall Within the Definition of a Business Associate.  This promises to be an incredibly helpful program for lawyers and legal staff.  If you can’t attend, the MBA records and archives all CLEs for later access.

The Year in Review – Useful Tips You May Have Missed

Thank you readers!  I hope this has been a fruitful year for you.  Just in case you missed a tip or two, here is a list of 2012 blog posts for your perusal:

January

February

March

April

May

June

July

August

September

October

November

December

All Rights Reserved 2012 Beverly Michaelis

Your Ethical Obligation to Find a Missing Client

What must you do if your client suddenly drops off the face of the earth?

In this month’s Oregon State Bar Bulletin, Deputy General Counsel Amber Hollister gives the following recommendations:

Search for the missing client using one of (or all) of the following approaches:

  • Mailing, e-mailing and telephoning a client at all known addresses and telephone numbers.
  • Utilizing web search services such as Google and social networking sites to locate additional contact information.
  • Researching public records such as property, tax, voter, marriage and court records and reviewing the client file for alternate contact information.
  • Visiting (or sending a staff member to visit) the client’s home or place of employment.
  • Contacting the client’s family members, co-workers, employer or medical providers.
  • Hiring a private investigator to search for the client, particularly where stakes are high or large sums of money are involved.

I would add:

  1. Look for red flags. Clients who move frequently, change jobs often, or have no friends or family in the community are more likely to fall out of touch.
  2. Always collect the names, addresses, telephone numbers, and e-mail addresses of at least two emergency contacts from every client. The Professional Liability Fund New Client Information Sheet provides a convenient way to do this. For a sample form, visit the PLF Web site > Practice Aids and Forms > File Management > New Client Information Sheet.  Get additional names and contact information if the situation warrants.
  3. Stress to clients the importance of keeping in touch with your office at all times. Some law offices add language to their fee agreement or engagement letters giving the responsible attorney the right to withdraw if the client fails to cooperate in the client’s case. This can include requiring the client to keep a current address and telephone number on file with the lawyer’s office at all times.
  4. If a client becomes unresponsive or difficult to reach, the situation is not likely to improve. Carefully document your efforts to communicate with the client and give strong consideration to withdrawing from representation when the problem first develops.
  5. Take extra precautions with impaired clients. One solution may be to learn the names and numbers of the other professionals with whom your client has regular contact.  (Case workers, social workers, psychologists, and physicians are examples.)  Get your client’s authorization to establish and maintain contact with these professionals.
  6. Recognize that certain practice areas such as criminal law involve clients who are more likely to move without notifying you.
  7. If you decide to withdraw from representation, read and comply with the  applicable disciplinary and court rules.
  8. If it’s too late and your client has already disappeared, conduct as thorough a search as possible. Take all the steps described above by Ms. Hollister, then working from the information on your intake sheet, call the client’s workplace and emergency contacts.  If you decide to visit your client’s last known address, consider talking to the neighbors. Run a DMV search or skip trace.  Follow this rule of thumb:  apply the same level of diligence in searching for your client as you would in locating and serving the opposing party in your case.

Accepting Settlement Offers

Can you accept a counteroffer for an amount less than your demand if you cannot reach your client?  Does it matter if the counteroffer is only open for a short time and you believe the amount is reasonable?  The answers are “no” and “no.”  Ms. Hollister explains:

RPC 1.2(a) provides that it must always be the client’s decision whether or not to settle a matter. Because the lawyer is the client’s agent, the lawyer cannot act without authority from the client. OSB Formal Op No 2005-33. Even if an attorney believes that a settlement offer is eminently reasonable, she is not allowed to supplant the decision of the client. Instead, the lawyer must diligently attempt to communicate the settlement offer to the client while it is still open. RPC 1.3; 1.4. If the lawyer is unable to communicate with the client, the lawyer must reply that she is without authority to accept the offer. Alternatively, the lawyer could seek additional time within which to respond to the offer.

(This answer assumes the client has not previously given the lawyer authority to settle her case for a lesser amount or within a specified range.)

Filing a Complaint to Beat the Statute of Limitations

In this instance, you are ethically permitted to file a complaint to preserve the client’s claim assuming you made “reasonably diligent efforts to contact the client and you have sufficient information to support the filing of a complaint. RPC 1.4; RPC 3.1.”  This is also the correct result from a malpractice avoidance standpoint.  You can then seek to withdraw, provided you “…make a reasonably diligent effort to notify the missing client of the pending withdrawal, and take all reasonably practicable steps to protect the client’s interests. RPC 1.16(d).”  If you find yourself in this situation, contact the Professional Liability Fund and ask to speak to one of the on-call claims attorneys.

Informing Opposing Counsel

Should you tell opposing counsel you have lost contact with your client?  There is no easy answer.  You must balance your duty of confidentiality against the competing obligation to avoid materially misleading the other side.  “Similarly, the lawyer would likely have an obligation to reveal the fact a client is missing if the lawyer believes that opposing party is or may be relying on his previous incorrect assertions or assertions that are no longer true.”

If the fact that a client is missing is confidential information that cannot be disclosed, “the lawyer will need to seek to withdraw without disclosing the client’s status as missing, even if that will leave opposing counsel with a misunderstanding of the facts. RPC 1.16(a); see e.g. OSB Ethics Op No 2005-34 (an attorney whose client commits what the attorney knows to be perjury must ask the client to correct the perjury and, if the client refuses, seek leave of the court to withdraw without disclosing the client’s perjury).”

Stay tuned for Part II in next month’s Bar Counsel column.

All Rights Reserved 2012 Beverly Michaelis

The October issue of In Brief is Now Online

The October issue of In Brief is now available on the Professional Liability Fund Web site.  Articles and announcements include:

ABA Techshow 2013

Adjusted Tort Liability Limits Against Public Bodies

Check Scams Become Even More Sophisticated and Generally Have No PLF Coverage

Data Breach Coverage Added to 2013 PLF Excess Coverage

Immigration Law Resources

In Brief Returns to Print

Modification to Civil Case Management System in Multnomah County

New Foreclosure Law Requirements and PLF Practice Aids

PLF Claims Attorney Position

Reporting Responsibilities Under Medicare

Tips, Traps, and Resources

Searching Online Court Calendars

As Oregon eCourt continues to transform how we conduct business at the courthouse more services are available via the Web.  OJD Courts ePay allows parties to pay most traffic citations and many civil and criminal fees online.  Jurors, attorneys, and case participants can retrieve information about courts, including hours of operation and directions.  The best feature to come from eCourt transformation?  The ability to retrieve court dockets online.

Use the OJIN (Oregon Judicial Information Network) circuit court calendars to find calendar information for all  Oregon circuit courts except Yamhill Circuit Court and the appellate courts.
Some restrictions do apply:
  • You can only search for the first plaintiff and defendant on a case.
  • You  can only search for the first three attorneys on a case, with the system first looking for attorneys on the scheduled event and then for active attorneys on the case.
  • Search results will return the first 500 entries on the docket.
Search by party or attorney.  If desired, specify a date range.  Choose -All Courts- or select a specific court.
How you format your search matters.  OJIN advises:
The Party Name and Attorney fields are case-insensitive and can be all or part of a name. For example, entering “John” in the Party Name field will give results of all the cases with “John”, “Johnson”, and “Van Johnson.”  Names are stored in the same manner as in the OJIN system “Last First Middle” with no commas and one space between names. For example, Michael Jay Smith is actually stored as “Smith Michael Jay.”  Searching for “Michael Jay Smith” will not find any results; however, searching for “Smith Michael” or “Smith M” or “Smith Michael Jay” will include the desired results.
Use the Oregon  eCourt circuit court calendars to view calendar information for Yamhill County Circuit Court (and in the future, other circuit courts as the eCourt transition continues).  Select the drop-down menu to search by attorney, case, judicial officer, party or defendant name, and date range.  Case categories include criminal, civil, family, probate, and mental health.  (Check or uncheck as desired.)  A CAPTCHA code is required to ensure that a human being is entering the search request.
What you see on the screen will vary, depending on your search parameters.  If you elect to search by case, you must have a case number.  If searching by judicial officer, a drop-down appears permitting you to select a name off the list.
When searching by party or defendant, choose “name” for an individual or “business” for a business.  Checking the “Use Soundex” box will allow you to do a “sounds like” search on a last, first, middle, or business name:
When searching by attorney, use the name fields or enter a bar number:
Knowing how to search online court calendars can be a handy way to retrieve docket information in a pinch.  If you lose your calendar or suffer a computer meltdown, you can easily retrieve upcoming court dates on the Oregon Judicial Department Web site.