Discussion 1: Malpractice”
A: Discuss why the Indiana court In Vergara vs. Doan, at 593
N.E. 2d 185 (Ind. 1992) and at p. 435 of your textbook decided to replace the
modified locality rule in favor of adopting the national standard rule re: the
standard of care at applicable to doctors in determining liability in medical
B: Give your opinion on what standard of care is appropriate for
doctors who provide patient advice over the internet and telephone to patients
in any, or all, of the 50 states?
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“Discussion 2: Professionals”
A: Describe the “trial within a trial” method of determining
damages caused by a lawyer’s malpractice. See Fishman v. Brooks at 487 N.E.2d
1377 (Mass. 1986) and at p. 460 of your textbook.In this case, Fishman
charged attorney Brooks with legal malpractice for urging that Fishman settle,
when in fact the attorney was not prepared for trial, and for mistakenly
representing that driver’s insurance policy limits were $250,000. Brooks urged
Fishman to settle for $160,000 when the policy limits were, in fact,
$1,000,000.00.Assuming the hypothetical facts that you knew that this
single successful malpractice action had happened 20 years ago, while this
attorney was going through a personal divorce, would you trust him to handle a
traffic accident in which you were involved?
B: The court in Carbone v. Tierney at 864 A. 2d 308 (N.H. 2004)
and at p. 464, discusses the requirements for a plaintiff to collect on a
malpractice claim against an attorney.That is, this court decided that
to successfully prove that the lawyer’s malfeasance was the proximate cause of
plaintiff’s loss, he would have to demonstrate two (2) things. First, that if
the defendant would have performed adequately, and then the plaintiff would have
succeeded on the merits in the underlying case. And second, that the plaintiff
would have succeeded in collecting on the resultant judgment.This means
that if the attorney can prove that the judgment, if won, would not have been
collectible, then this uncollectability is a complete defense to the malpractice
action and the plaintiff receives nothing.Give your opinion on whether
or not you believe collectability should be a complete defense to legal
malpractice actions. Provide a rationale for your response.
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