Fishow v. Simpson

• Decision Date: 08 July 1983
• Docket Number: No. 1348,1348
• Citation: 462 A.2d 540,55 Md.App. 312
• Parties: Dorothy V. FISHOW v. Gary Howard SIMPSON.
• Court: Court of Special Appeals of Maryland

Page 312

55 Md.App. 312

462 A.2d 540

Dorothy V. FISHOW v. Gary Howard SIMPSON.

No. 1348.

Court of Special Appeals of Maryland.

July 8, 1983.

Jeffrey Lee Greenspan, Washington, D.C., with whom were Gary Steven Mandel and Greenspan & Mandel, P.C., Washington, D.C., on brief, for appellant.

Joseph F. Cunningham, Washington, D.C., with whom were Robin A. Rosenbluth and Haggerty, Donohue & Cunningham, Washington, D.C., on brief, for appellee.

Argued before GILBERT, C.J., and MASON and GETTY, JJ.

GETTY, Judge.

The appellant herein, Dorothy V. Fishow, being twice aggrieved by adverse decisions in litigation initiated by her, appeals to us to reverse the second call. For the reasons hereinafter set forth, we shall affirm.

In Fishow v. Perry, Law No. 44790 in the Circuit Court for Montgomery County, Mrs. Fishow asserted claims of wrongful commitment and medical malpractice against Dr. Morris Perry, her physician. Gary Edward Simpson, the appellee herein, represented Mrs. Fishow in a four day jury trial that was concluded on September 29, 1977, by a verdict for the defendant, Perry. No appeal was taken from that judgment.

After a lapse of nearly three years, Mrs. Fishow determined that her unsuccessful attempt to recover from Dr. Perry was not due to a less than meritorious claim, but was solely attributable to the failure of the appellee to present her case properly. On September 24, 1980, therefore, she filed a legal malpractice action against her former counsel, Simpson.

The declaration charges Simpson with breach of contract in the first count and with negligence in count two. Depositions were submitted by Mrs. Fishow, Robert Fishow, her husband, and by the appellee, Simpson. Both parties responded to requests for production of documents and, thereafter, Simpson filed a Motion for Summary Judgment. A hearing was held on Simpson's motion on July 12, 1982. All of the judges of the Circuit Court for Montgomery County recused themselves and the case was assigned to a judge from another county. The reasons for the recusal are not disclosed in the record. At the conclusion of the hearing, the court requested Mrs. Fishow to submit a supplemental memorandum directed to case law on legal malpractice as a contract action; relevant case law to support the contention that expert testimony is not required to establish the standard of care under the facts of this case and identification of the expert witnesses and the acts or omissions the experts would have testified constituted medical malpractice by Dr. Perry. Mrs. Fishow filed the supplemental memorandum on July 15, 1982.

On August 3rd the court granted the appellee's motion in a one paragraph order "for the reasons set forth in (Mr. Simpson's) memorandum of points and authorities filed ... on May 21, 1982, and July 19, 1982.". The memoranda referred to consists of twenty-one pages and the trial court's shotgun approach has left the appellant in a quandary as to what the court actually decided as to the five issues presented. One could conclude that the alacritous disposition answered everything, or that no definitive result has been reached as to any of the issues. Preferably, the trial court should answer each issue as concisely as possible, thus avoiding the confusion that flows from the generalization employed in this case. The reasons stated in support of any ruling, furthermore, should be those of the court, not counsel's.

The appellant's issues are:

A. Whether a remedy for breach of contract is available in a case alleging failure to perform adequately on the part of an attorney in a situation arising out of an attorney/client relationship?

B. Whether or not expert testimony is necessary regarding the standard of care of an attorney in a lawsuit for breach of contract against that attorney?

C. Whether or not expert testimony is necessary regarding the standard of care in a lawsuit for negligence against an attorney in a case where the allegations, if proved at trial, could be construed as a clear and obvious violation of the attorney's duty?

D. Whether or not expert testimony is necessary regarding the standard of care of an attorney in a lawsuit for negligence against an attorney where the trial is a bench trial and the trial court can take judicial notice of the standard of care for an attorney in Maryland?

E. Whether or not there were disputed issues of material fact sufficient to preclude the granting of summary judgment and to require a trial on the merits?

THE FACTS

On or about May 31, 1973, Dorothy V. Fishow visited Dr. Morris Perry, a licensed physician, at his office in Wheaton, Maryland. Dr. Perry, who had treated Mrs. Fishow's husband, Robert, for some time previously, diagnosed Mrs. Fishow as being "depressed" and prescribed the drug Elavil for her. Mrs. Fishow was not seen again by Dr. Morris Perry between May 31, 1973 and June 22, 1973. On June 21, 1973, Mrs. Fishow went to Holy Cross Hospital in Silver Spring, Maryland, seeking advice concerning an adverse reaction she was experiencing.

On June 22, 1973, Dr. Perry signed and issued a statement on a Physician's Certificate of the Department of Mental Hygiene of the State of Maryland that Mrs. Fishow was not eating, not sleeping, and would be a threat to herself if she were not involuntarily committed. Dr. Perry further certified that he had personally examined Mrs. Fishow on June 17, 1973, when in fact he had not. Dr. Perry also stated in the certificate that Mrs. Fishow was not under medication, when in fact he knew that Mrs. Fishow was taking Elavil, having prescribed it himself.

As a result of the execution of these certificates, Mrs. Fishow was arrested by Sheriff's Deputies or Police Officers of Montgomery County, Maryland, and was held in custody from June 22, 1973 until July 11, 1973, at Springfield State Hospital in Sykesville, Maryland, against her will.

On May 22, 1976, Mrs. Fishow, having retained Gary Howard Simpson, Esquire, as her attorney, filed suit against Dr. Perry in the Circuit Court for Montgomery County, Maryland, Law No. 44790. Mrs. Fishow's Declaration alleged that Dr. Perry's actions resulted in her false and illegal imprisonment; that Dr. Perry had filed a false certificate in that he had not personally examined Mrs. Fishow on June 17, 1973 and that he had certified that Mrs. Fishow was not on any medication when she was in fact taking Elavil; that Dr. Perry had failed to adequately follow up his prescribing of Elavil for Mrs. Fishow on or about May 31, 1973; that Dr. Perry had abandoned his care of Mrs. Fishow by failing to see her personally between May 31, 1973 and June 22, 1973; that Dr. Perry should not have prescribed Elavil because there was a high risk of this drug precipitating a manic episode in a potentially manic-depressive person; that Dr. Perry did not avail himself of a consultation with a psychiatrist; that Dr. Perry failed to inform Mrs. Fishow of the harmful side effects of Elavil; and that Dr. Perry's actions in their entirety constituted negligence and medical malpractice.

In her legal malpractice action, Mrs. Fishow alleged seven specific evidentiary issues that she contends establish a breach of contract and/or negligence committed by Simpson. On appeal, she abandons four of her seven contentions and, therefore, those four are not before us. The remaining complaints are:

1. Simpson failed to elicit testimony that Fishow's condition prior to commitment was physical and resulted from a combination of food and drugs rather than psychological factors.

2. Simpson did not establish that Dr. Perry should not have prescribed the drug "Elavil".

3. Simpson did not produce evidence to establish that Dr. Perry's falsifying a certificate constituted medical malpractice.

ISSUE NO. 1

The appellant couches this issue of a breach of contract remedy being available in a legal malpractice action upon the premise that counsel "failed to act adequately". This is clearly not the test upon which Caltrider v. Weant, 147 Md. 338, 128 A. 72 (1925), relied upon by the appellant, is based. In Caltrider counsel was expressly employed for the purpose of obtaining a mechanic's lien which he failed to do. In Fishow v. Perry, Simpson was employed to pursue a claim for medical malpractice against Dr. Perry, which he did.

The record is devoid of any showing that Simpson was instructed to adopt any particular theory in presenting Fishow's claim. To contend after the fact that a different strategy should have been employed is resorting to the infallibility of hindsight. It is not, however, a basis for an action for breach of contract. If Fishow's contention is correct, Simpson would be liable to her even if she had been successful in her action against Dr. Perry, for the reason that he did not present the case in a manner depicting her as having physical rather than psychiatric problems.

Watson v. Calvert Bldg. & Loan Assn., 91 Md. 25, 45 A. 879 (1900), also cited by the appellant in support of a contract theory of legal malpractice, is apposite to Caltrider. In Watson counsel was employed for the specific purpose of searching a title which subsequently proved to be defective. The court in Watson said:

"This responsibility of the attorney, although ordinarily enforced by an action of case for negligence in the discharge of his professional duties, in reality rests upon his employment by the client and is contractual in nature."

We do not construe this quotation to stand for the proposition that legal malpractice is a breach of contract in every case. If counsel, in Watson, had not searched the title he would have breached the contract employing him for that purpose. Certifying a defective title, however, is a negligent performance of the contract between the parties.

We agree that legal malpractice may give rise to an action for breach of contract in cases involving employment of an attorney to perform a specific service in accordance with clearly stated...