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Goff v. Justice8/16/2002
TO BE PUBLISHED
OPINION REVERSING AND REMANDING
Judy Mae Goff and Phillip G. Goff appeal from an order of the Boyd Circuit Court denying their motion to alter, amend, or vacate a summary judgment entered by that court in favor of Appellees Rodney S. Justice and Wilson, Stavros & Justice. The summary judgment resulted in a dismissal of the Goffs' legal malpractice complaint against the appellees. We conclude that the trial court erred in awarding summary judgment to the appellees, and we thus reverse and remand.
Mrs. Goff was injured while stocking shelves as a part of Wal-Mart's new store set-up team for a store in Evansville, Indiana. Because of her injury , she sought treatment from several medical professionals, including Dr. Christopher McCoy and Dr. William G. Pearson. Dr. McCoy performed surgery on Goff to remove her first rib and a cervical rib on one side. The surgery took place in the Owensboro-Daviess County Hospital.
As a result of the treatment Goff received during her recovery from the surgery, she and Mr. Goff filed medical malpractice claims in the Daviess Circuit Court on March 28, 1991. The Goffs were initially represented by Grover S. Cox and Grover C. Cox. The three defendants named in the Goffs' complaint were the Owensboro-Daviess County Hospital, Dr. McCoy, and Dr. Pearson. The trial court later entered an order allowing Wal-Mart to intervene and assert a subrogation claim based on benefits it had paid on behalf of the Goffs.
In April 1992, the trial court granted the Goffs' attorneys' motion to withdraw, and Appellee Rodney S. Justice entered an appearance as attorney on their behalf. At that time, only one medical expert, Dr. Isidore Mandelbaum, had been identified by the Goffs as an expert witness on their behalf. Dr. Mandelbaum was then Mrs. Goff's treating physician. Justice claims that at the time he entered the case no evidence was in the case file which would have supported a claim of negligence against either the hospital or Dr. Pearson. Further, Justice claims that Dr. Mandelbaum's opinion, while critical of Dr. McCoy, failed to support claims against either the hospital or Dr. Pearson.
Dr. Mandelbaum was deposed on August 31, 1992. As a result of his deposition, the hospital moved the trial court to award it summary judgment. Although the motion was properly noticed and was continued once at the request of the defendants, Justice failed to file a written response to it. In addition, he failed to appear at either hearing. As a result, the trial court granted the hospital's motion. In doing so, the trial judge noted, " e will enter a summary judgment. Maybe that will get his attention."
Shortly thereafter, Dr. Pearson's attorney approached Justice seeking an agreed order of dismissal for his client. The Goffs acknowledge that Justice consulted them on this matter. They assert they informed Justice that they would "reluctantly agree" if two conditions were met. The first condition was that Dr. Pearson continue as Mrs. Goff's treating physician, and the second condition was that Dr. Pearson agree to provide expert testimony regarding the care provided by Dr. McCoy. Subsequent to the signing of the agreed order of dismissal, the Goffs learned that the conditions they sought had not been agreed to. They allege that Justice misled them into believing that Dr. Pearson had agreed to the conditions.
Mrs. Goff also received medical care from Dr. Erdogan Atasoy. The Goffs claim that Dr. Atasoy was critical of the care Mrs. Goff had received and that they informed Justice of Dr. Atasoy's opinion. The Goffs asked Justice to approach Dr. Atasoy for his services as a medical expert in the
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