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In re Bailey9/15/2005
drafted. Thus, it may seem strange that the first two paragraphs of the authorization restrict payment to Dr. Garmon from the settlement funds to the situation in which he is "required as an expert witness." Nevertheless, that is the plain meaning of the first two paragraphs of the authorization. The record shows that Dr. Garmon did not testify on behalf of Ms. Haile at any point during her personal injury case. At any rate, the parties disagree as to whether Dr. Garmon was an expert witness. The Board, without referring to any specific evidence, found that Dr. Garmon was not an expert witness. Mr. Bailey agreed pointing to the Board's report and recommendation which labeled Dr. Garmon as Ms. Haile's treating physician. In addition, Mr. Bailey notes that Dr. Garmon never referred to himself as an expert witness but simply as Ms. Haile's treating physician. Bar Counsel, on the other hand, argues that Dr. Garmon was an expert witness as evidenced by Mr. Bailey's responses during discovery, naming Dr. Garmon as one of his experts. In addition, Bar Counsel points to at least two reports prepared by Dr. Garmon.
Given our deference to the Board, we conclude that there is substantial evidence in the record to support the finding that Dr. Garmon was not an expert witness. Dr. Garmon sent Mr. Bailey a letter dated August 29, 1991, which was a continuation of a medical report dated March 23, 1990. In the letter Dr. Garmon described his diagnosis of Ms. Haile's injuries. The last page of the letter was a bill that broke down the "fees for services rendered." The total was $3,037.81. Scribbled at the bottom of the bill was the phrase "agreed to $2,430.25," and the date September 26, 1991. The breakdown of the charges only referred to general medical services for diagnosis and treatment of Ms. Haile's injuries. In addition, in a letter dated August 19, 1992, Dr. Garmon wrote that he had not been "compensated [$2,420.30] for services in treating [Ms. Haile] . . . ." (Emphasis added.) The reports prepared by Dr. Garmon were for the diagnosis and treatment of Ms. Haile, not for Dr. Garmon's services as Ms. Haile's expert witness. Therefore, because Dr. Garmon's services were not as an expert witness but as Ms. Haile's treating physician, the first two paragraphs of the authorization did not convey a lien in Dr. Garmon's favor.
The paragraph in the authorization that is most significant with respect to Dr. Garmon's right to be paid from the settlement funds is that above Mr. Bailey's signature which states: "The undersigned, being attorney of record for the above patient/client [Ms. Haile] does hereby agree to observe all the terms of the above and agrees to withhold such sums from any settlement(s), judgment(s) or verdicts due said patient/client as may be necessary to adequately protect said doctor." A reasonable person in the position of the parties would interpret this clause as holding Mr. Bailey, the person to whom Ms. Haile's settlement funds were sent, accountable for any monies owed to Dr. Garmon; either as Ms. Haile's expert witness or as her treating physician. This last paragraph of the authorization clearly stated that Mr. Bailey agreed to withhold such monies owed to Dr. Garmon for his services from any settlements due to Ms. Haile as may be necessary to "adequately protect" Dr. Garmon. Therefore, when Ms. Haile's case settled for $25,000, Mr. Bailey was under a contractual obligationto withhold the $2,420.30 owed to Dr. Garmon out of the settlement funds, and Dr. Garmon had a "just claim" with respect to those funds.
Despite Mr. Bailey's awareness that he had signed the authorization, and that by signing he had "agree to withhold such sums [as due and owing to Dr. Garmon] from any sett
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