disciplinary handbook: volume v - Supreme Court - State of Ohio

Hales, Toledo Bar Assn. v.
120 Ohio St.3d 340, 2008-Ohio-6201. Decided 12/4/2008.
Case Summaries- 110
Respondent mishandled and consequently lost a client‘s medical malpractice case due to his
inexperience. He then failed to notify his liability insurance carrier of the client‘s malpractice suit,
prompting the insurer to deny coverage, and filed bankruptcy, thereby preventing the client from
collecting on a $280,000 malpractice judgment in her favor. Bonnie Oehlers was pursuing a medical
malpractice claim against multiple defendants for the postoperative care that allegedly led to her mother‘s
death. John B. Fisher, an experienced medical malpractice attorney, had worked extensively on the
case: advancing $10,000 in trial preparation, obtaining experts to testify against all defendants except
the nursing home, and negotiating a high-low settlement agreement with the nursing home. Oehlers asked
respondent to look over the high-low settlement agreement before she signed it. After discussing
Oehlers‘ case and the agreement with an attorney respondent shared office space, he told Oehlers that the
nursing home should be willing to pay more than the amounts specified in the agreement. Oehlers‘ did
not sign the agreement, retrieved her files from Fisher‘s office, and hired respondent to handle her case.
Respondent had never litigated a medical-malpractice claim before. He tried to find more experienced
co-counsel, but was unsuccessful. Respondent entered an appearance in Oehlers‘ case in September
2003, but did no discovery in the following months. The case required at least three expert witnesses to
prove defendants‘ negligence. Respondent failed to file notice of his expert witnesses by the trial court‘s
deadline. All defendants moved for summary judgment by the end of March 2004, arguing respondent
had failed to disclose expert witnesses necessary to sustain the plaintiff‘s burden of proof.
Respondent filed three successive motions to extend the deadline for his response to these motions, all
of which were granted, giving him until May 15, 2004 to file his response in opposition. In the
meantime, respondent asked Fisher, who had claimed a lien for the value of his work and expenses in the
case, to provide the names of the experts whom he anticipated using at trial. Fisher gave respondent
two names. He warned that one of the doctors he planned to call no longer qualified as an expert
because he retired. Respondent was unable to procure an expert to testify against the nursing home and
he could not find a replacement expert for the retired doctor. Neither he nor his client could afford to
pay doctors to review the medical evidence necessary to render an expert opinion. Respondent did
advance somewhere between $600 and $1000 to obtain an affidavit from the pathologist regarding
causation and standard of care. On May 25, 2004, ten days after the extended deadline, respondent filed
one response, with the affidavit attached, to all the motions for summary judgment and filed the
affidavit. In July 2004, the court granted the defendants‘ summary judgment motions. Respondent
advised Oehlers of the court‘s ruling and tried to arrange a meeting between Oehlers and Fisher to discuss
Oehlers options. He never scheduled the meeting, never discussed the case with Oehlers again, and
believed Oehlers ―had put [the] whole entire episode to bed.‖ Respondent filed Chapter 7 bankruptcy in
February 2005 for discharge of personal debt, but he did not list the possibility of a medical malpractice
suit. Because the bankruptcy court treated the filing as a ―no-asset‖ case, the failure to list did not prevent
the discharge of the debt. The bankruptcy court discharged respondent‘s debt in May 2005. Oehlers sued
respondent for malpractice in June 2005. Respondent did not answer. At some point respondent filed for
Chapter 13 bankruptcy protection after defaulting on his mortgage and he accurately listed the malpractice
claim in his petition as a pending action. After the bankruptcy court granted Oehlers relief from the
automatic stay and the common pleas court granted her motion for default judgment, awarding her
$280,000 in damages. Respondent has malpractice insurance, but never gave his insurer notice of
Oehlers‘ pending malpractice claim. His carrier denied coverage. Respondent‘s actions prevented any
form of recovery by Oehlers. The parties stipulated that respondent‘s discharge in bankruptcy did not
release his insurer from liability, but he did not realize this at the time, he thought the discharge wiped
out the insurer‘s contractual obligation to indemnify others for losses caused by his negligence. The
board found violations of DR 1-102(A)(6), 6-101(A)(1), (2) and (3), and 7-101(A)(3). The Supreme
Court agreed. In aggravation, respondent acted out of self-interest, harmed a vulnerable client, and failed
to make restitution. BCGD Proc.Reg. 10(B)(1)(b), (h), and (i). In mitigation, respondent has no prior
disciplinary record, fully admitted his wrongdoing and cooperated with the disciplinary proceedings, and