Waldman v. Levine

• Decision Date: 16 June 1988
• Docket Number: No. 86-1405.,86-1405.
• Citation: 544 A.2d 683
• Parties: Marvin WALDMAN and Daniel Steven, Appellants, v. Aaron M. LEVINE and Essie L. Swann, Administratrix of the Estate of Beatrice Swann Pratt, Appellees.
• Court: D.C. Court of Appeals

544 A.2d 683

Marvin WALDMAN and Daniel Steven, Appellants, v. Aaron M. LEVINE and Essie L. Swann, Administratrix of the Estate of Beatrice Swann Pratt, Appellees.

No. 86-1405.

District of Columbia Court of Appeals.

Argued March 3, 1988.

Decided June 16, 1988.

Jamie M. Bennett, with whom John P. Arness and Paul M. Snyder, Washington, D.C., were on the brief, for appellants.

Waldemar J. Pflepsen, Jr., with whom Robert F. Condon, Washington, D.C., was on the brief, for appellee Aaron M. Levine.

Charles C. Parsons, Washington, D.C., for appellee Essie L. Swann.

Before PRYOR, Chief Judge, ROGERS, Associate Judge, and KERN, Senior Judge.

ROGERS, Associate Judge:

Appellants Marvin Waldman and Daniel Steven (appellants) are attorneys who represented appellee Essie L. Swann (Swann) in an action for medical malpractice arising out of the death of her daughter Beatrice Swann Pratt. Swann, administratrix of her daughter's estate, sued appellants for legal malpractice, alleging that they had been negligent in representing her in the medical malpractice action. Appellants principally appeal the jury verdict on the grounds that (1) Swann's legal expert distorted the standard of care for attorneys in medical malpractice actions, and (2) Swann's evidence of legal malpractice was factually and legally insufficient. Appellants appeal from the dismissal of their third-party complaint against Swann's successor counsel, appellee Aaron M. Levine (Levine), and a directed verdict on the issue of Levine's alleged negligence in failing to file a motion to set aside the settlement and vacate the dismissal of the medical malpractice case as an intervening cause of Swann's loss. We hold that the trial court did not err in denying appellants' motion for judgment notwithstanding the verdict or a new trial since the expert's testimony was properly admitted and Swann presented sufficient evidence from which the jury reasonably could find that appellants were negligent. We further hold that the motions judge did not err in dismissing the third party complaint since application of the normal rules of indemnity for an alleged successor, independent tortfeasor is incompatible with the attorney-client relationship when successor counsel must choose between alternative courses of action. Accordingly, we affirm.

I.

Beatrice Pratt died on November 24, 1975, at Columbia Hospital for Women twelve days after giving birth to her fourth child. The cause of death was determined to be pelvic thrombophlebitis, a condition including clotting in the veins in the pelvic area. During exploratory surgery conducted by the attending physicians twelve days after the delivery of the child, portions of the blood clot mass broke away, traveled up the inferior vena cava,¹ passed through the heart and into the pulmonary arteries, blocking the flow of blood to the lungs and causing death. Swann, the decedent's mother, subsequently retained appellant Waldman to file a wrongful death and survival action for medical malpractice against the hospital and a number of physicians who had treated her daughter. Appellant Steven, an associate of Waldman, also worked on Swann's case.

A.

The Medical Malpractice Action. Appellants first asked Dr. Ann Dimitroff, a local internist, to review the decedent's medical records and to assess the conduct of the decedent's attending physicians. Based upon her initial review, Dr. Dimitroff concluded that the care provided by the attending physicians did not conform to the standard of care for obstetrician-gynecologists (OB/GYN's) in such circumstances. Appellants accordingly filed suit on November 23, 1976, against Columbia Hospital and the attending physicians under the District of Columbia's Wrongful Death and Survival statutes, D.C.Code §§ 16-2701, 12-101 (1981), on behalf of the decedent's estate and her surviving children.

In preparation for trial, appellants contacted two medical experts who advised them of the need for an OB/GYN expert to review the medical records. Dr. Harold Hirsh, an area specialist in internal medicine and a lawyer, reviewed the decedent's medical records and requested that appellants obtain information from Dr. Brian Blackbourne, who had conducted an autopsy. Dr. Blackbourne advised appellants that an OB/GYN expert needed to determine the progression of the emboli which occluded the pulmonary artery and caused death. After reviewing the records and the information obtained from Dr. Blackbourne, Dr. Hirsh determined that the attending physicians had failed to conform their treatment to the standard of care, but advised appellants that he was also going to have the medical records reviewed by an OB/GYN. Dr. Hirsh also agreed to serve as an expert witness and to testify on Swann's behalf in the medical malpractice action. In addition, Dr. Hirsh offered to assist appellants in locating an OB/GYN specialist to testify on Swann's behalf. Dr. Hirsh later informed appellants that he would no longer be able to serve as their expert witness.

Appellants' subsequent efforts to retain an OB/GYN specialist proved unavailing, and by the summer of 1978, they were still without an expert witness. In light of the January, 1979, trial date, appellants retained Dr. Dimitroff. After Dr. Dimitroff was deposed in October, 1978, appellants concluded that her testimony undermined the claim of medical malpractice because Dr. Dimitroff had failed to consider certain aspects of the decedent's past medical history in making her initial assessment of the case, and, on cross-examination, had acknowledged that the doctors were justified in performing surgery when they did.

Appellants and Swann decided nonetheless to proceed with the deposition of the defendant physicians, Dr. Booker and Dr. Turner, and thereafter appellants requested a continuance of the January 9, 1979, trial date. The trial was rescheduled to July 30, 1979, with a backup date of April 30, 1979.

Beginning in January, 1979, appellants explored the possibility of settling the medical malpractice case. On April 10, 1979, they advised Swann that the defendants were willing to settle only for funeral expenses and the costs of litigation. They further informed Swann that because the trial was set for April 30, 1979, it would be necessary to have Dr. Dimitroff travel from Nevada to testify if no settlement could be reached. Appellants acknowledged that Dr. Dimitroff's deposition could be presented as evidence of the claim of malpractice, but advised Swann that, in their view, Dr. Dimitroff's live testimony would be more effective. They told Swann that the doctor's fee for testifying was $2,500. Appellants also advised Swann that as a result of their interview with Dr. William Jaffurs, the chief pathologist at the Columbia Hospital, who had consulted during the decedent's surgery, they were convinced that there had been no medical negligence. They there fore recommended that Swann settle the case. Swann told them she did not want to settle and wanted a continuance of the trial date so she could get the money for the doctor's fee.

After this meeting, there appears to have been a breakdown in communications between appellants and Swann. Two weeks later, and six days before trial, on April 24, 1979, Swann, appellants, and counsel for the defendant physicians appeared in the Superior Court before Judge Norma Holloway Johnson. Appellant Steven told Swann that the judge had denied a request for a continuance, and appellants moved to withdraw their appearance as counsel for Swann. Judge Johnson referred the matter to Judge William Stewart, with whom Swann and appellants, outside of the presence of defense counsel, discussed the status of the case. After this conference, they returned to court and Swann informed Judge Johnson that because she had no other choice at this point, she had reluctantly consented to have the case dismissed with prejudice in return for payment of approximately $2,200, representing funeral and out-of-pocket expenses. Accordingly, a praecipe of dismissal was entered. Swann signed the praecipe, as did appellant Waldman in his capacity as her counsel. Judge Johnson never ruled on appellants' motion to withdraw.

Appellants were later contacted by appellee Levine and informed that he intended to seek to have the dismissal set aside. By letter dated May 16, 1979, Levine requested that appellants execute a praecipe formally withdrawing their representation so that he could enter his appearance as Swann's attorney and move to set aside the dismissal; attached to Levine's letter was a letter from Swann discharging appellants as her counsel. Appellants executed a praecipe and sent it to Levine, but the praecipe apparently was never filed with the court. Appellants later learned that the praecipe had never been filed and that Levine had never entered his appearance as Swann's attorney. In November, 1980, Swann sued appellants for legal malpractice.

B.

The Legal Malpractice Action. In the legal negligence action, Swann alleged that appellants had breached their fiduciary duty to her, fraudulently misrepresented both their investigation and the status and quality of the medical malpractice action, and had negligently failed to prosecute her case with diligence. She relied on evidence that appellants had failed to consult with an OB/GYN expert before recommending that she settle her case for expenses, had failed to obtain an economist to prepare and testify about the damages resulting from her daughter's wrongful death, and had failed fully to advise her of her options and unjustifiably refused to seek the continuance that she had requested.

Before trial, appellants filed a third-party complaint against Levine alleging that Swann's damages were caused by Levine's negligent failure to take the steps necessary to have the dismissal set aside. Levine moved to dismiss the complaint. After a hearing, Judge Revercomb granted the motion, ruling that the third-party...