Professional Liability Advocate

Physicians typically recall, with stunning clarity, the moment a patient’s treatment went wrong.  Following an adverse event, physicians often are tormented by competing desires to apologize and instincts to forge ahead without acknowledgement. A patient’s decision to file a malpractice action may be triggered by the physician’s response to a problem − or lack thereof.

The Washington Post highlighted contrasting tales of medical errors in which two patients suffered devastating consequences during surgery. Frustrated by a “white wall of silence” preventing her health care providers from articulating more than “’things didn’t go well,’” the first patient desperately committed to finding truth at all costs. In stark contrast, following his surgeon’s immediate explanation and apology for an error that rendered the second patient quadriplegic, the patient engaged in productive discussions with risk managers. The patient’s needs were met and his attorneys negotiated a confidential settlement without litigation.

This is my first entry as a regular contributor to the Municipal & Public Entity section of the Professional Liability Advocate blog. Municipal and public official litigation falls under Wilson Elser’s Municipal/Local Government practice group.

Among other topics, this blog will focus on cases and liability under 42 U.S.C. §1983. Section 1983 is a notably short statute – it covers less than a single page in the United States Code – yet is responsible for a very large volume of federal litigation. This is because section 1983 does not provide substantive rights as such, but rather a procedural mechanism, a cause of action, to enforce rights guaranteed elsewhere by the U.S. Constitution and federal laws.

As empty nesters, my wife and I ask each other the standard question as we sit down for dinner each night: “How was your day?” We usually exchange small talk about work, the commute and so forth. As an attorney, I am acutely aware of the attorney/client privilege, and therefore careful not to jeopardize my clients’ confidences. Sometimes, however, lawyers and other professionals can’t help disclosing facts about their work that may be deemed violative of confidences. Some may be covered by strict privileges, such as lawyer/client or physician/patient relationships. If the wrong information is disclosed to the wrong person, while not a technical violation of a recognized privilege, the professional can be exposed to claims of an ethical breach, giving rise to licensing issues, negligence claims or damage to business interests.

Attorneys sometimes forget that members of the general public may not share our familiarity with the legal system. The service of a subpoena duces tecum (bring it with you under penalty of punishment) on a “civilian” can generate numerous questions. The subpoena is an imposing, formal document that requires the recipient to produce files, records and documents at a place certain within a limited time period, and often demands that the recipient testifies at a deposition or a trial. There are penalties for failure to comply, and if the recipient is a non-lawyer professional, these issues can be compounded by time pressure, confidentiality/privilege and cost issues.

I am not a statistician. Frankly, I start to sweat when I look at spreadsheets, tables and charts. I don’t, however, need a table, graph or chart to know that there is a perception that insurance brokers and agents have questionable ethics and are generally thought to be untrustworthy. This is borne out by the Gallup poll, which historically places “insurance salespeople” near the bottom of the rankings for honesty and ethics of various jobholders.

I often speak to groups of professionals on how to avoid errors and omissions claims. When I started making such presentations more than 30 years ago, I would hold up a piece of notebook paper and explain that it was a professional’s “best friend” when it comes to avoiding future problems. A memo of a conversation with a client detailing and confirming the services that can (or can’t) be delivered and the realistic outcomes that can (or can’t) result from those services may provide the best defense when a client complains. This is only true to a point. Sometimes, written communications provide a client with ammunition for a claim of negligence.

As part of my blog training, I was asked to review my social media presence in general and in particular my LinkedIn account. My profile, admittedly, had not been reviewed in some time, so I updated my bio and skills section.

This made me think about “puffing,” which I learned about in my Contracts class in law school. For those unfamiliar with the term, it is something we experience daily in sales transactions and advertising. Puffing is the exaggeration of the positives of a service or product or anything else someone is looking to sell. Any advertisement that includes superlatives – such as “greatest,” or “best” – or statements that are clearly not intended as factual representations are not generally actionable if you buy the “product” and find it to be lacking. Consumers dealing with a salesperson should expect some level of “puffing.”