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In medical malpractice cases, it is a matter of hornbook law that health care providers bear no liability for poor outcomes resulting from the exercise of professional judgment, as long as they adhere to the relevant standard of care. In an attempt to facilitate jurors' understanding of this concept, courts across the country have given "mistake" or "error-of-judgment" charges, which typically instruct the jury that physicians are entitled to exercise their professional judgment in choosing either of two reasonable options.
Last month, the state's Senate Judiciary Committee advanced a bill that, if passed, will help indigent parents involved in child removal and placement proceedings.
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Last month, the New York City Council passed a bill by a margin of 43 to 5 that would require contractors doing business with the city to offer same-sex partner benefits to their employees if their contracts with the city are valued at more than $100,000.
Judge Marilyn O'Connor of Family Court, Monroe County, issued a controversial order in March barring a frequently homeless couple from having any more children until they can show that they will be able to care for the four children they already have.
Every year or so, divorce lawyer Alton Abramowitz does something that would make many a lawyer lose sleep: He breaks up with a client. He would rather not show clients the door, but, he says, their unrealistic expectations sometimes leave him with no other choice.
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Recent rulings of importance to you and your practice.
In last month's newsletter, we discussed the issue of the unused professional license and its value, if any, when seeking equitable distribution at the time of divorce. The court in <i>Pino v. Pino</i>, 189 Misc.2d 331 (Sup. Ct. Nassau 2001), for one, has compared equitable distribution to imputed child support and maintenance and concluded that it possesses full authority to calculate the enhanced earning potential from the license and can add that monetary result to the monies to be equitably distributed. But this is a rather unexplored area of the law in New York -- an area ripe for litigation. <b>Part Two of a two-part article.</b>
Recent rulings of importance to you and your practice.
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The Supreme Court, in its May 17, 2004 decision in <i>Tennessee Student Assistance Corporation v. Hood</i>, __ U.S. ___ (2004), declined to reach the issue of whether the Bankruptcy Clause in Article I of the Constitution grants authority to Congress to abrogate state sovereign immunity from private suits. Instead, in a 7-2 decision, the Court ruled that a proceeding to determine whether an otherwise nondischargeable student loan can be discharged because of an undue hardship on the debtor is not a "suit" against the state for purposes of the Eleventh Amendment. The Court's decision, written by Chief Justice Rehnquist, turned on the in rem nature of the proceeding and reasoned that the bankruptcy court did not need jurisdiction over the state where it had jurisdiction over the debtor and her property.
It is well-settled that "property of the estate" is broadly defined under section 541 of the Bankruptcy Code as including all legal and equitable interests of a debtor. Therefore, the breadth of property of the estate includes a debtor's indirect, residual or reversionary interest in the return of funds. It is also equally acknowledged that, in general, a letter of credit (LC) is an independent obligation of the issuing bank and, under the "independence principle," is not necessarily property of the estate. From time to time, these two concepts -- broad estate interest in property versus the treatment of a LC -- clash in bankruptcy. In these instances, some courts will look at "substance" and not "form" to determine whether the debtor's residual interest in an LC is property of its estate.
