Winter v. Brown

• Decision Date: 01 November 1976
• Docket Number: No. 9270.,No. 9262.,9262.,9270.
• Citation: 365 A.2d 381
• Parties: Lawrence J. WINTER et al., Appellants, v. Edwin Darnell BROWN, a minor, by his mother and next friend Audrey Ann Brown, et al., Appellees. Edwin Darnell BROWN, a minor, by his mother and next friend Audrey Ann Brown, et al., Appellants, v. Lawrence J. WINTER et al., Appellees.
• Court: D.C. Court of Appeals

365 A.2d 381

Lawrence J. WINTER et al., Appellants, v. Edwin Darnell BROWN, a minor, by his mother and next friend Audrey Ann Brown, et al., Appellees.

Edwin Darnell BROWN, a minor, by his mother and next friend Audrey Ann Brown, et al., Appellants, v. Lawrence J. WINTER et al., Appellees.

No. 9262.

No. 9270.

District of Columbia Court of Appeals.

Argued October 14, 1975.

Decided November 1, 1976.

Rehearing and Rehearing en Banc Denied December 9, 1976.

James C. Gregg, Washington, D.C., with whom Gary W. Brown, Washington, D.C., was on the brief, for Lawrence J. Winter et al.

Milton Heller, Washington, D.C., with whom Irving Dross, Langley Park, Md., was on the brief, for Edwin Brown et al.

Before KELLY and MACK, Associate Judges, and BELSON, Associate Judge, Superior Court of the District of Columbia.^*

BELSON, Associate Judge:

Appellants in No. 9262 are members of the bar who were sued in the Superior Court for legal malpractice. Appellees therein are the parents of Edwin Darnell Brown, an infant who allegedly sustained serious injuries in the course of being delivered by a first-year resident at a hospital operated by Prince George's County, Maryland.¹ At the time of the child's birth, there was in effect a Maryland statute² which required that notice of any claim against Prince George's County, including necessarily a claim of medical malpractice on the part of agents or employees of the hospital in question, be given the county in writing within 180 days of the occurrence. Appellees retained appellant attorneys some four months after the occurrence. Appellants were unaware of the notice requirement and failed to comply with it. They investigated the circumstances of the delivery, conferred with medical experts and, subsequent to the expiration of the six-month notice period, advised appellees they had no cause of action for medical malpractice. Appellees then retained other counsel who filed an action in Maryland against Prince George's County, but not against any agent or employee of the hospital. Upon demurrer, the Maryland action was dismissed with prejudice because of failure to give notice. Appellees then brought the instant action for legal malpractice, alleging that appellants had been retained "to prosecute and pursue plaintiffs' claims and actions for the aforesaid damages against Prince George's County, Maryland," but negligently failed to do so.

Some eight months after bringing this action, plaintiffs amended the complaint to join as a defendant Dr. Fouad Naccache, the first-year resident whose claimed negligence in attempting to deliver infant plaintiff was allegedly directly reponsible for his injury. Appellants cross-claimed against him. Dr. Naccache moved successfully for dismissal for lack of personal jurisdiction. Appellees have not brought action in Maryland against Dr. Naccache or any of the individual physicians or other persons who played a part in the delivery of the infant, nor have they brought an action against those hospital employees who had responsibility for fixing the policies of the hospital regarding delivery of infants by residents or supervision of such deliveries. Dr. Naccache has, at all pertinent times, been available to be sued in Maryland, although he indicated in a deposition taken shortly after the filing of the instant suit that he was contemplating an eventual return to his native Egypt. The chief resident who supervised him, Dr. Machado, had already returned to Brazil at the time of Dr. Naccache's deposition.

Pursuant to Maryland statute,³ the immunity of Prince George's County against civil suits arising out of the operation of the hospital is removed to the extent of the liability limit of the hospital's malpractice insurance coverage. At the time of the occurrence that limit was $100,000. The policy included as insureds the employees and staff of the hospital. Neither the 180-day notice provisions nor the statutory limitation of liability to $100,000 applied to employees or to staff.

At trial, appellees proved to the satisfaction of the jury that appellants "were negligent in serving [appellees] as their lawyers" with the proximate result that appellees were deprived of a cause of action against Prince George's County that could successfully have been pursued, and that appellees were damaged thereby. The jury returned verdicts of $500,000 for the minor plaintiff through his next friend, and of $16,144.33 for his father James Leon Brown, Jr., individually. Upon post trial motion, the trial judge reduced the former to $100,000 plus interest and costs, the maximum verdict which could have been returned against the hospital under the statute, and vacated the father's verdict altogether. The appeal in No. 9262 followed. The father of the minor plaintiff cross-appealed in No. 9270 to protect his rights in the event the former appeal should succeed. We affirm.

Appellants urged throughout the proceedings in the trial court and contend here that appellees have not established their right to recover against appellants for loss of a cause of action against the hospital and county since they have not yet taken advantage of their right to sue hospital employees and staff members who remain as potentially liable defendants. As a result, appellants argue, appellees have not yet suffered any loss. Appellants further urge that appellees have failed to take available steps to avoid the consequences of appellants' failure to give notice, that is, that they have failed to mitigate damages. They argue that even if some loss was sustained, appellees have failed to establish what their damages are. Appellants made numerous motions before, during and after trial seeking complete immunization against appellees' claims for damages because of the appellees' surviving right of action against the first-year resident and other agents or employees of the hospital.

We agree with the trial judge's denial of those motions.⁴ When appellees retained appellants, appellees had a right of legal action against the hospital and county which had not existed at common law but was the creature of a relatively recent statute. That right of action was broader in scope than the alternative action which appellants particularly insist appellees should pursue, the action against the first-year resident. Appellees could have urged against the hospital numerous theories of negligence not available to them in a suit against that individual. Those theories included failure on the part of responsible hospital staff members or employees to establish procedures for deliveries which would have avoided placing upon a relatively inexperienced resident the responsibility for delivering, alone, an infant presenting in the transverse position; failure to require specifically that a supervising physician be present or immediately available under circumstances such as those involved here; failure to exercise appropriate care in the selection and training of residents such as Dr. Naccache; failure to inform Mrs. Brown that her baby would be delivered by a relatively inexperienced resident, contrary to the prevailing practice in Maryland and in breach of the hospital's duty to obtain an informed consent;⁵ and, generally, failure on the part of any other agent or employee to adhere to the appropriate standard of care with resulting injury to appellees.

With respect to the last-mentioned theory, it is noteworthy that the chief resident, who eventually took over and delivered the infant, might he charged with negligent supervision. He, however, had returned to his native Brazil by the time this action was filed. At trial, appellees put in evidence of negligent supervision and argued it to the jury. The trial judge observed cogently that it would be unreasonable to require appellees to pursue every possible cause of action against agents or employees of the hospital and county as a prerequisite to suing the attorneys who deprived them of their primary cause of action against the hospital.

It is true, as appellants argue, that appellees' case against the hospital depended ultimately upon a showing of negligence on the part of the delivering physician. In the factual context of this case, it appears that no failure of the hospital to take any action required by applicable standards of care to protect appellees from injury would have led to liability on the part...