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Bilawsky v. Faseehudin8/24/1995
In this medical malpractice action, plaintiff, Margaret Bilawsky, and her attorneys, Don, Hiller & Galleher, P.C., and J. Michael Dowling & Associates, P.C., appeal the trial court's order awarding defendant Mohammed Faseehudin his attorney fees pursuant to § 13-17-101, et seq., C.R.S. (1987 Repl. Vol. 6A). Faseehudin cross-appeals the trial court's award of less than all his requested attorney fees and costs. Defendants John Evans and Nicholas Przystawski cross-appeal the trial court's denial of their request for an award of attorney fees and costs. We affirm in part, vacate in part, and remand with directions.
A nerve in plaintiff's foot was severed during foot surgery in 1987. Faseehudin was the anesthesiologist during the surgery and defendants Evans and Przystawski were surgical residents observing the surgery. The surgeon who performed the operation is not a party to this appeal.
Plaintiff filed her complaint in December 1992, naming as defendants all of the physicians who were present in the operating room during her surgery. In April 1993, defendants Faseehudin, Evans, and Przystawski filed affidavits stating they had not taken part in the actual surgery on plaintiff's foot and could not have been responsible for her injury. Plaintiff then signed a stipulation dismissing these defendants. However, she later moved to amend her complaint to rejoin them as parties because the surgeon refused to stipulate that he would not name these defendants as non-parties at fault. Plaintiff later dismissed these defendants with prejudice in September 1993, after the surgeon finally signed the stipulation.
The defendants requested an award of their attorney fees and costs under § 13-17-101, et seq., and C.R.C.P. 11, asserting that plaintiff and her counsel had failed to conduct any investigation before filing the complaint and had not presented any credible evidence that these defendants had committed any wrongful act.
Plaintiff's counsel admitted that, before filing the complaint, they did not conduct any investigation with respect to Faseehudin's actions nor did they consult with an anesthesiologist and that, after filing the complaint, they did not depose any of the defendants or any of the witnesses to the surgery.
The trial court ruled that, because plaintiff's certificate of review did not comply with the requirements of § 13-20-602, C.R.S. (1987 Repl. Vol. 6A), plaintiff's counsel were not entitled to the presumption that a claim accompanied by a certificate of review is not groundless. See § 13-17-102(2.1), C.R.S. (1994 Cum. Supp.).
The trial court granted Faseehudin's motion for attorney fees and costs. It found that plaintiff's counsel had violated C.R.C.P. 11 by signing the original and amended complaints without investigating the claims against Faseehudin. It also found that Faseehudin was entitled to an award under § 13-17-101, et seq., because plaintiff did not present any evidence to support a claim against him. It awarded Faseehudin approximately half of the fees he requested.
By separate order entered the same day, the trial court denied the request of defendants Evans and Przystawski for fees. The trial court concluded it had not been inappropriate for plaintiff to keep those defendants in the case because there was some evidence that these defendants had assisted in plaintiff's surgery.
The trial court's order as to Faseehudin was certified as a final order pursuant to C.R.C.P. 54(b) in February 1994. The trial court's order a
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