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Frivolous actions

On New Year's Eve in 2000, Marie Syverson hurt her ankle ice-skating.  She and her fiancee went to the emergency room at Southwest General Hospital.  Six years later, that fall wound up costing her lawyer $8,500.  Actually, it wasn't the fall, it was the way the lawyer handled the ensuing civil case, says the 8th District in Sigmon v. Southwest General Health Center

According to Sigmon -- Syverson got married eight months later, so we'll use her married name, as the opinion does --  things had gotten funky her first night in the hospital:  a doctor Khan had appeared, accused her of being addicted to drugs, and told her she had to leave the hospital because she didn't have insurance.  She wound up having surgery to repair the ankle a couple days later at another facility.  She sued Southwest General four days before the statute ran, claiming that they were negligent in treating her, and that the accusation of drug use and discharging her because she didn't have insurance was outrageous conduct.  Although, as noted, she didn't get married until after the incident, the complaint included a claim for loss of consortium.

Things went downhill pretty quickly.  Dr. Khan wasn't an employee of the hospital, he claimed he never treated the plaintiff, and the hospital records corroborated that.  The bigger problem was that an expert couldn't be found to say that the hospital's treatment of the plaintiff was negligent.  The first lawyer withdrew, and a new lawyer came in and obtained an extension of time to file an expert report.  When he couldn't get one, he voluntarily dismissed the case.

He refiled it one day before the savings statute expired.  The complaint contained the same bogus loss-of-consortium count, and now included a claim for punitive damages of equally dubious validity.  What's worse, he still didn't have an expert.  The court gave him over seven months to get one, and when he didn't, the defendants moved for summary judgment.  He didn't oppose that, and after the motions were granted, the defendants asked for sanctions.  The trial court agreed they were warranted, and so did the court of appeals.

What makes this a good cautionary tale, though, is that up until the very end the lawyer probably could have saved himself.  Although both courts made much of the assertion of invalid claims -- loss of consortium, punitive damages, and the allegation that all of the defendants, not just Dr. Khan, had made the accusation of drug abuse and the threat to discharge the plaintiff for lack of insurance -- the biggie was that the lawyer didn't dismiss the case when he knew that it wasn't going anywhere.  What was worse is that he failed to dismiss the case even when the client wanted him to.

Actually, that last part is somewhat understandable.  It's fairly clear from the opinion that the attorney-client relationship broke down, perhaps even before the second complaint was filed.  The lawyer wrote to his client in April, two months before the summary judgment motions were filed, telling her that the expert he'd hired had concluded there was no negligence, and that she needed to see if another lawyer would take over the case because otherwise the court would dismiss it.  The client replied that she no longer trusted the lawyer, and didn't wish to pursue the case.  Had he followed up on that by voluntarily dismissing the case, that would've been the end of the matter.  It was only because the defense attorneys had to prepare and file the summary judgment motions that they pursued sanctions.

My guess is that the lawyer was worried about getting sued by the client, which is why he filed the second complaint, and then didn't dismiss it.  That doesn't excuse his lackadaisical approach to the case:  He originally asked his expert for a report in September of 2002, and didn't follow up on it until December of the following year, two months after he'd refiled the complaint.  As the court of appeals noted, filing a med mal case without an expert isn't automatically sanctionable, but the combination of the lengthy delay in obtaining one plus not dismissing once it became apparent that the negligence claim was unsupportable makes for a different result.

If there's a moral to this story, besides making sure you do your due diligence, it's that we're lawyers, not captains.  If the ship's going down, make sure you don't go down with it.


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