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- 110Respondent mishandled and consequently lost a client‘s medical malpractice case due to hisinexperience. 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 fromcollecting on a $280,000 malpractice judgment in her favor. Bonnie Oehlers was pursuing a medicalmalpractice claim against multiple defendants for the postoperative care that allegedly led to her mother‘sdeath. John B. Fisher, an experienced medical malpractice attorney, had worked extensively on thecase: advancing $10,000 in trial preparation, obtaining experts to testify against all defendants exceptthe nursing home, and negotiating a high-low settlement agreement with the nursing home. Oehlers askedrespondent to look over the high-low settlement agreement before she signed it. After discussingOehlers‘ case and the agreement with an attorney respondent shared office space, he told Oehlers that thenursing home should be willing to pay more than the amounts specified in the agreement. Oehlers‘ didnot 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 experiencedco-counsel, but was unsuccessful. Respondent entered an appearance in Oehlers‘ case in September2003, but did no discovery in the following months. The case required at least three expert witnesses toprove defendants‘ negligence. Respondent failed to file notice of his expert witnesses by the trial court‘sdeadline. All defendants moved for summary judgment by the end of March 2004, arguing respondenthad 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, allof which were granted, giving him until May 15, 2004 to file his response in opposition. In themeantime, respondent asked Fisher, who had claimed a lien for the value of his work and expenses in thecase, to provide the names of the experts whom he anticipated using at trial. Fisher gave respondenttwo names. He warned that one of the doctors he planned to call no longer qualified as an expertbecause he retired. Respondent was unable to procure an expert to testify against the nursing home andhe could not find a replacement expert for the retired doctor. Neither he nor his client could afford topay doctors to review the medical evidence necessary to render an expert opinion. Respondent didadvance somewhere between $600 and $1000 to obtain an affidavit from the pathologist regardingcausation and standard of care. On May 25, 2004, ten days after the extended deadline, respondent filedone response, with the affidavit attached, to all the motions for summary judgment and filed theaffidavit. In July 2004, the court granted the defendants‘ summary judgment motions. Respondentadvised Oehlers of the court‘s ruling and tried to arrange a meeting between Oehlers and Fisher to discussOehlers options. He never scheduled the meeting, never discussed the case with Oehlers again, andbelieved Oehlers ―had put [the] whole entire episode to bed.‖ Respondent filed Chapter 7 bankruptcy inFebruary 2005 for discharge of personal debt, but he did not list the possibility of a medical malpracticesuit. Because the bankruptcy court treated the filing as a ―no-asset‖ case, the failure to list did not preventthe discharge of the debt. The bankruptcy court discharged respondent‘s debt in May 2005. Oehlers suedrespondent for malpractice in June 2005. Respondent did not answer. At some point respondent filed forChapter 13 bankruptcy protection after defaulting on his mortgage and he accurately listed the malpracticeclaim in his petition as a pending action. After the bankruptcy court granted Oehlers relief from theautomatic 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 ofOehlers‘ pending malpractice claim. His carrier denied coverage. Respondent‘s actions prevented anyform of recovery by Oehlers. The parties stipulated that respondent‘s discharge in bankruptcy did notrelease his insurer from liability, but he did not realize this at the time, he thought the discharge wipedout the insurer‘s contractual obligation to indemnify others for losses caused by his negligence. Theboard found violations of DR 1-102(A)(6), 6-101(A)(1), (2) and (3), and 7-101(A)(3). The SupremeCourt agreed. In aggravation, respondent acted out of self-interest, harmed a vulnerable client, and failedto make restitution. BCGD Proc.Reg. 10(B)(1)(b), (h), and (i). In mitigation, respondent has no priordisciplinary record, fully admitted his wrongdoing and cooperated with the disciplinary proceedings, and