EMAIL TO A COLLEAGUE COMMENT

 

Patient Proceeding Pro Se; Attorney Withdrawal; Caesarian


An obstetrician/gynecologist (OB/GYN) provided a patient with prenatal care. The patient was concerned that the patient did not seem to be gaining weight similarly to other pregnant patients. The OB/GYN informed the patient that the fetus was small because the patient was small.

 

Two days before the due date, the patient noticed a decrease in fetal movement. The OB/GYN performed an ultrasound and noted that everything was normal. When the patient arrived at the hospital for the infant to be delivered two days later, the patient was told the infant was in distress and a caesarian section (C-section) would be performed.

 

The infant was born blue and suffered cardiac arrest post-delivery. The infant’s birth history included hypoxia, aspiration of meconium, Intrauterine Growth Restriction, a paucity of amniotic fluid, two cardiac arrests, a 14-day hospital stay, perinatal asphyxia, intubation for the first week of life, Persistent Pulmonary Hypertension of the Newborn (PPHN), cardiorespiratory arrest with CPR required, and coagulopathy of such severity that the infant was not a candidate for extracorporeal membrane oxygenation (ECMO).

 

The patient, as parent and next friend of the infant, sued the OB/GYN and the OB/GYN’s practice group for medical malpractice. The complaint alleged that the infant’s developmental delays were caused by the OB/GYN’s negligence in the patient’s prenatal care and the infant’s delivery.

 

The infant’s counsel moved to withdraw from the case and also requested a 90-day continuance of all deadlines. As justification for the motion to withdraw, the infant’s counsel stated that irreconcilable differences and breakdown in communications had arisen between the counsel and the patient that precluded further representation. The motion did not elaborate, instead stating that the details of the irreconcilable differences and breakdown in communications were within the confines of the attorney-client privilege.

 

The motion to withdraw hearing lasted less than six minutes and focused on the parties’ respective positions as to the continuance of the deadlines in the case. The Hardin Circuit Court stated that, given that the trial date was less the five months later, it would “be challenging for any counsel to take the case.” Counsel for the OB/GYN requested that the patient be deemed to proceed pro se in the event replacement counsel was not found. Days before the infant’s expert disclosures were due, the trial court granted the infant’s counsel’s motion to withdraw and continued some deadlines for 60 days to allow the patient to find replacement counsel. The trial court ordered the patient to find replacement counsel or to automatically be deemed to proceed pro se. The trial court did not extend the deadlines regarding expert disclosures.

 

Four days later, the patient, without counsel, filed expert disclosures. The patient made multiple motions for more time to find an attorney and to provide dates for experts to be deposed. The OB/GYN opposed these motions. The patient, still without counsel, sent defense counsel date ranges for depositions based on the experts’ availability.

 

The OB/GYN moved to exclude the patient’s experts for failure to disclose dates for depositions and for summary judgment. The motion argued that because the possible dates for depositions were after the scheduled trial date, the patient had not effectively complied with the trial court’s order, and exclusion was warranted. If the experts were excluded, the motion argued the OB/GYN would be entitled to judgment as a matter of law because a plaintiff in a medical malpractice case must provide expert testimony as part of the prima facie case.

 

The trial court excluded the patient’s experts and dismissed the case. The Kentucky Court of Appeals affirmed.

 

The Supreme Court of Kentucky reversed. The court held that the trial court abused its discretion in permitting the patient’s attorney to withdraw; on a matter of first impression, the court held that the patient did not engage in the unauthorized practice of law; the trial court’s act of striking the patient’s expert disclosures was in error; summary judgment was improper; and, on a matter of first impression, the court held that a “next friend” cannot proceed pro se on behalf of a real party in interest.

 

The trial court abused its discretion in permitting the patient’s attorney to withdraw. The court explained that, in actions brought by a “next friend,” the minor or incompetent is the real party in interest and the lawyer’s duty is to such minor or incompetent. The court found the record was completely void of any evidence that irreconcilable differences or a breakdown in communication occurred between the patient and counsel and, more importantly, the record was completely void of even an inquiry into whether irreconcilable differences or a breakdown in communication had occurred between counsel and the client, the infant. The court found that sufficient justifications for a trial court to consider in permitting an attorney to withdraw from a case were only summarily cited by the patient’s counsel and not explored by the trial judge. Because the trial court did not inquire into the justification for the patient’s counsel’s withdrawal from the case, the court found that the trial court acted unreasonably and unfairly to the infant’s substantial detriment. The court noted that, when permitting the patient’s attorney to withdraw, the trial court acknowledged the previously scheduled trial date as well as the unlikelihood that replacement counsel could be found. The court held that permitting the patient’s attorney to withdraw less than six months prior to trial in a complex medical malpractice case was clearly erroneous. The court concluded that the trial court abused its discretion in permitting the patient’s attorney to withdraw because the trial court’s actions were unreasonable in these circumstances and caused great injustice to the infant. The court instructed the trial court that, if, upon remand, the trial court found sufficient justification permitting counsel’s withdrawal, and the patient had not acquired substitute counsel, the trial court should hold the case in abeyance for a reasonable time for the patient to secure counsel. If substitute counsel could not be found in a reasonable amount of time, then the trial court should strongly consider dismissing the case without prejudice.

 

The patient did not engage in the unauthorized practice of law because the patient was specifically authorized and ordered to proceed pro se according to the trial court’s order. The court held that a next friend representing the real party in interest has not engaged in the unauthorized practice of law when explicitly directed by the trial court to proceed in such a manner. The court reasoned that, once the trial court entered its order directing the patient to find replacement counsel or to automatically be deemed to proceed pro se, and after the patient’s subsequent inability to procure counsel, the patient was obligated to do as the trial court ordered. Because the trial court did not extend the deadlines regarding expert disclosures, and because the trial court entered the order permitting the patient’s attorney to withdraw days before such disclosures were due, the patient had to follow the court’s directive, for not doing so would have made the patient not only non-compliant with a court-ordered obligation, but also potentially subject to the trial court’s contempt power.

 

The trial court’s act of striking the patient’s expert disclosures was in error. The court reasoned that the trial court struck the patient’s expert disclosures solely because of its erroneous determination that the patient had engaged in the unauthorized practice of law. Because the court held that the patient was not engaged in the unauthorized practice of law, the court also held that it was error for the trial court to strike the expert disclosures.

 

Summary judgment was improper. The trial court’s grant of summary judgment was premised on the fact that expert proof is required to establish a medical negligence claim and the trial court had improperly struck the patient’s expert disclosures. The court noted that it was defense counsel who first requested that the patient be deemed to proceed pro se in the event replacement counsel was not found and defense counsel treated the patient as a pro se litigant, certifying service to the patient for various motions and requesting that the trial court take action against the patient for alleged violations of discovery orders. The court found that the trial court’s and defense counsel’s actions forced the patient to practice law and then suffer the allegations of the unauthorized practice of law and its consequences. The court held that the defense counsel’s request that the patient be deemed to proceed pro se and the trial court’s erroneous order constituted manifest injustice that seriously affected the fairness, integrity, or public reputation of the proceeding. Summary judgment should not be used for sanctioning the patient’s actual compliance with the trial court’s order. The court reasoned that the patient presented expert witnesses sufficient to survive a motion for summary judgment, the patient’s disclosure should not have been stricken, and, consequently, summary judgment was improper.

 

A “next friend” cannot proceed pro se on behalf of a real party in interest. The court reasoned that the interests of the “next friend” and the interests of the real party in interest may not always be aligned. When the interests of the “next friend” and the interests of the real party in interest become adverse, the “next friend” no longer acts as agent for the minor or incompetent because the only reason the “next friend” is even a nominal party in the case, rests upon the premise that the “next friend” brings the minor or incompetent’s claims. The court concluded that that a “next friend” is precluded from providing pro se representation because the risk of potential adverse interests disqualify an otherwise appropriate “next friend.”

 

The Supreme Court of Kentucky reversed the trial court’s dismissal of the claims against the OB/GYN and the OB/GYN’s practice group.

 

See: Azmat v. Bauer, 2018 WL 4628446 (Ky., September 27, 2018) (not designated for publication).

 

See also Medical Law Perspectives Report: Mothers, Infants, and Obstetrical Injuries: Labor and Delivery Liability Risks

 

See also Medical Law Perspectives Report: Pediatrician Liability Involving Diseases and Conditions of Childhood

 

 

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