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Bowden v. Hutzel Hospital8/9/2002
FOR PUBLICATION
Plaintiffs appeal as of right from an order approving a settlement agreement in this medical malpractice action arising out of the birth of Thornell Bowden, Jr. who suffered a brain injury and severe neo-natal complications. We reverse and remand for further proceedings consistent with this opinion.
I. Basic Facts and Procedural History
As a result of defendant's alleged malpractice, plaintiff, Thornell Bowden Jr. (Thornell), experienced excessively prolonged fetal distress which caused severe and permanent injury to his brain upon his birth. Renee Rawls (Rawls), Thornell's mother, was appointed as his next friend, so that she may commence suit on his behalf. Rawls and Thronell Bowden Sr. (Bowden), the child's father, retained the law firm of Mindell, Panzer, Kutinsky and Benson through Thomas Mulcahy, to file a lawsuit against defendant hospital on their behalf and on behalf of their minor son.
The case proceeded to discovery and mediation. The mediators returned a mediation evaluation of $1,000,000.00 in plaintiffs' favor which the parties did not accept. Ultimately, the parties agreed to have a retired judge facilitate the case. On May 11, 2000, the judge returned an award in plaintiffs' favor for $1,245,000.00. In addition, the award also provided for the establishment of a special needs trust which protected all of Thornell's governmental benefits. The facilitator's award required court approval. All of the parties to the facilitation approved the award including Rawls and Bowden. After extensive consultation with their attorney and weighing all of the risks inherent in proceeding to trial, Rawls and Bowden signed the facilitation award.
However, shortly thereafter, Rawls and Bowden became dissatisfied with the award. On advice from a friend, Rawls and Bowden contacted Gilbert Spencer, of the Spencer and Maston law firm in New York. Apparently, after reviewing some documentation, Spencer opined that the case was worth much more than the facilitation award reflected and that he could procure a greater recovery.
In the interim, Mulcahy filed a motion for the court's approval of the settlement. On June 21, 2000, plaintiffs signed and served Mulcahy with a letter discharging his firm. The letter further directed him to relinquish plaintiffs' files to Spencer's law firm and withdraw the motion to approve the settlement submitted in the trial court. Also on June 21, 2000, the guardian ad litem representing Thornell's interests filed a report and recommendation approving the settlement agreement but one day later wrote Mulcahy a letter withdrawing his previous recommendation.
Despite the letter ostensibly discharging him, Mulcahy nevertheless appeared before the trial court on June 23, 2000, informed the court of the facilitated settlement as well as advised of his clients' wish to substitute attorneys. Mulcahy strenuously urged the trial court to enter an order upon the facilitation award maintaining that it was in Thornell's best interests. Neither Rawls nor Bowden appeared at this hearing.
Nevertheless, the trial court declined to allow substitution of counsel and made a finding that the facilitated award served Thornell's best interests. After expressly reserving the possibility of taking testimony from Rawls and Bowden, the trial court entered an "Order Approving Settlement on Behalf of Thornell Bowden, a Minor," which order effectuated the terms of the facilitation award.
Upon a show cause proceeding initiated by Spencer to have his law firm formally undertake representation, the trial court held a hearing on June 30, 2000. During this proceeding, the trial court heard testi
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