Patient-victim cannot sue attorney, despite his conflict of interest in representing hospital and victim
The Court of Appeals concluded its opinion in Allen v. Gaus by pointing out that it "had serious concerns about the structure of the [parties'] attorney-client relationship. "[I]t is, at minimum, ill-advised for a hospital to recommend an attorney, particularly one who has represented the hopsital in the past or who contemporaneously represents it in other matters. No arrangement should be permitted where issues of client loyalty would challenge, or even appear to challenge, the attorney...The combination of a conflict of interest, even if waived, and an unclear scope of representation is all too likely to end poorly."
Despite this criticism of the overly-cozy relationship between the at-fault hospital and the attorney it recommended to the victim of medical malpractice, the Court approved the summary disposition of the woman's legal malpractice claim against her attorney, Steven M. Gaus, and his firm Smith Bovill, P.C. The victim plaintiff, Markiesa Devonn Allen was attempting to sue the lawyer who represented her in negotiating a settlement of her mother's malpractice death claim. The Hospital had essentially admitted fault and recommended that the plaintiff retain Gaus--even though his firm regularly represented the hospital.
Gaus testified that he explicitly limited his representation to the "wrongful death claim" and apparently admitted that he discussed the case with the hospital risk manager before even meeting with the victim's family. He then presented the victim's daughter with a "conflict of interest waiver" which she signed. The case ultimately settled for $450,000.00, and the risk manager testified that the Hospital had been prepared to pay $500,000.00. Two malpractice attorneys testified that the settlement was too low and that Mr. Gaus did not represent the family properly.
The family's experts testified that Gaus never should have taken the case, since he was "beholden" to the defendant, anticipated future work from the hospital, and could not properly ask a client to waive such a substantial conflict of interest. The two experts (one of whom did primarily malpractice defense) placed an estimated value of $600,000.00 to $800,000.00 on the case. Defendant Gaus' attorneys argued, however, that the case should be summarily dismissed because the plaintiff's current attorneys had not adequately proved the value of the case Gaus had handled.
On appeal, the higher court upheld this result, despite the testimony of the two experienced attorneys and its own reservations about Gaus' conduct. It concluded that the current case would require expert testimony from nurses and physicians in order to prove that Gaus committed legal malpractice, and since the Plaintiffs had not listed medical experts, the case must be dismissed. It also ruled that the Plaintiff's current proofs did not establish ordinary negligence in caring for the decedent or the extent of the Plaintiff's economic losses.