Week Seven, Part 5 - Torts: Sue All The Lawyers

In Torts, Professor Rice is pounding us on the topic of negligence. After reviewing the elements generally, we turn to the cases grouped “Standard of Care (Professional).”

“Malpractice applies to all kinds of professionals,” Rice says, “not just lawyers.”

Oooh, our introduction into malpractice, broadly defined as "injurious conduct by an person acting in a professional capacity." Rice has everyone’s attention.

The issue in the first case, Heath v. Swift Wings, is whether a pilot was negligent in a small plane crash which killed two persons. The holding from the case emphasizes that the standard of care is not a subjective one, but objective.

Rice applies it to lawyers. “When you get out of here and pass the bar, you’ll immediately be held to a standard of the knowledge, training, and skill of the ordinary lawyer. Legally, as soon as you’re sworn in, you can undertake a forty-million-dollar leveraged buyout.” With the palm of his left hand, Rice taps on the whiteboard marker held in his right fist. “But be careful or you'll also be a defendant.”

In the next case, Hodges v. Carter, a drugstore owner sued his lawyers for negligence. The court held that the attorneys were not liable. Their mistake was over an unsettled point of law. And the lawyers had acted in good faith and the honest belief that their advice was well-founded and in the client’s best interest.

Everyone in class concurs. Just as doctors are given discretion in making a diagnosis, Rice notes, lawyers may make reasonable errors in interpretation.

We move on to medical malpractice. Rice says that although med-mal is a major body of law, we won’t spend long on it. “This course is just a flyby look at the issues,” he says.

Rice then announces that we have a “real doctor” in class, Tom Hauck, a local ophthalmologist. We turn to gawk. Hauck is sitting in the back row. He looks to be in his mid-40's, blonde hair a little longer than expected.

The student beside me rubs his thumb against his first two fingers: money.

Morrison v. MacNamara, our first med-mal case, revisits the issue of objectivity. The court held that varying geographical standards of care are no longer valid.

Rice asks Hauck. “Would you rather have an aneurysm outside Northwestern Medical Center or Dr. Thumb's office in Osceola?”

“Chicago, of course.”

“Are the docs out in the sticks supposed to be current with all the literature?”

“Absolutely,” says Hauck.

“Let’s apply this holding to the legal environ. Can an attorney in South Bend handle a complex transaction case?” Rice asks.

“I wouldn’t want him doing it for me, but yes,” Hauck says. “As long as he has the books and knows when he’s over his head.”

“Good. Remember, if you undertake to do something, you're bound to perform at an objective level. You can't say, ‘I’m just an eye doc dabbling in law.’"

We laugh, and Tom squirms a bit.

Rice steps to the side of the podium. “The malpractice business is essentially negligence, but there’s a little bit of class warfare here. Doctors and lawyers are professionals. We have an advantage over the hairdresser who is strictly liable if the client walks outside and her hair goes up in flames.”

We laugh in disbelief.

“No, it’s true," Rice says. "Happened to a woman in California.”

We laugh again and close our casebooks.

“Finally, if you sue a physician, you must follow all the malpractice procedures of the state. And be sure to check the local statute on malicious prosecution.”

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