Case Summaries

Legal Malpractice

[03/04] Aills v. Boemi
In plaintiff's medical malpractice suit against defendant plastic surgeon arising out of negligence in connection with an elective surgical procedure for breast reconstruction, the judgment of the Second District Court of Appeal is quashed and remanded as the district court erred in reversing for a new trial on the basis of an improper argument by plaintiff's counsel during closing argument.

[03/03] Willis v. Bender
In an action for lack of informed consent and medical malpractice, judgment for defendant is affirmed in part where there was no evidence, specifically expert testimony, that another physician was negligent and therefore no basis to hold defendant liable for his negligence. However, the judgment is reversed in part where defendant's alleged misrepresentations to plaintiff in response to her direct questions allegedly induced her to consent to the surgery and its risks, and under those circumstances, if proved, her consent could hardly be considered "informed".

[03/03] Oasis W. Realty, LLC v. Goldman
In an appeal involving defendants' anti-SLAPP special motion to strike (Code of Civil Procedure section 425.16) plaintiff-former client's suit for various causes of action including breach of fiduciary duty, arising from defendants' prior representation in connection with plaintiff's efforts to redevelop real estate it owned in Beverly Hills, trial court's conclusion that section 425.16 did not apply because the gravamen of the action was breach of an attorney's duties of loyalty and confidentiality is reversed as all causes of action in the complaint arose from acts in furtherance of protected activity, and plaintiff could not show a probability of prevailing at trial.

[03/02] Davis v. Brouse McDowell, LPA
In plaintiff's legal malpractice suit claiming that defendants failed to timely file three patent applications related to a website-search engine, summary judgment in favor of the defendants is affirmed where: 1) the district court exercised proper jurisdiction over plaintiff's malpractice cause of action; 2) the court did not abuse its discretion in striking portions of the supplemental affidavit of plaintiff's patent law expert; and 3) plaintiff failed to introduce evidence sufficient to establish a genuine issue of material fact as to the patentability of her inventions.

[02/26] Aills v. Boemi
In plaintiff's medical malpractice suit against a plastic surgeon for negligence in connection with a procedure of breast reconstruction, the decision of the second district court of appeal reversing a judgment in favor of plaintiff is quashed and remanded as the court erred in reversing for a new trial on the basis of an improper argument by plaintiff's counsel during closing argument.

[02/26] Deen v. Egleston
In a medical malpractice action, the denial of partial summary judgment for defendant is reversed where the district court, in striking down, under the Equal Protection Clause, a state statute that did not exempt the "legally incompetent" from the general two-year statute of limitations, overlooked the essential principle that matters of social and economic policy, particularly when they came to bear on the health and welfare of a state's citizens, were quintessentially legislative in nature.

[02/18] Medical Protective Co. v. Bubenik
In an action by an insurer seeking a declaration that it had no duty to pay a malpractice judgment, summary judgment for plaintiff is affirmed where the district court did not err in concluding that the malpractice defendant materially breached the cooperation clause in his insurance policy.

[02/11] Anderson v. Chikovani
In a medial malpractice action, defendant's motion to dismiss the appeal is denied as, where a party files a valid motion for new trial, and the trial court issues a timely order denying that motion but no one serves the order or notice of entry of that order, then the applicable deadline for filing the notice of appeal from the judgment is 180 days after entry of judgment.

[02/04] Elam v. Menzies
In plaintiff's suit claiming negligence in a heart operation that defendant-doctor performed, summary judgment for doctor on the ground that Kentucky's one year statute of limitations for medical malpractice suits had run is reversed and remanded as there is a factual dispute as to whether plaintiff knew or should have known he had a claim after the conversation with a second doctor, and thus, this issue should be referred to the jury.

[01/14] Florida Birth-Related Neurological Injury Comp. Ass'n v. Dep't of Admin. Hearings
In a consolidated medical malpractice action, involving the Florida Birth-Related Neurological Injury Compensation Plan established by the legislature, the decision by the Second District is quashed and remanded where, in order to satisfy the notice requirement of section 766.316, Florida Statutes, both participating physicians and hospitals with participating physicians on staff must provide obstetrical patients with notice of their participating in the plan.

[10/30] Akin, Gump, Strauss, Hauer & Feld, LLP v. Nat'l Dev. & Research Corp.
In plaintiff's legal malpractice case, court of appeals' judgment in favor of plaintiff is reversed where: 1) there is legally insufficient evidence to support a finding that damages in the underlying suit would have been collectible; and 2) the defendant attorneys' negligence did not proximately cause the entire amount the jury awarded as damages for attorney's fees and expenses. Because there is some evidence that the attorneys' negligence caused some amount of attorney's fees and expenses in the underlying suit, the case is remanded.

[09/04] Kardos v. Harrison
In wrongful death/survival action claiming defendant-doctor violated the standard of care by failing to refer decedent (cancer victim) for a biopsy or follow-up after malignant lesions were first revealed in a CT scan, and also claiming that decedent suffered a lost chance of survival as a result, judgment as a matter of law for defendant is affirmed where the superior court properly held that plaintiff failed to prove, through expert testimony with reasonable medical probability, that doctor's alleged negligence caused any lost chance of survival.

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