MD: Underlying Joint Representation of Medical Malpractice Claim
Facts: Six months after Lois Corbin (“Client”) had a mammogram performed by Dr. Amile Korangy (“Doctor”) she detected a lump in her breast and scheduled an appointment with her gynecologist, Dr. Dee Hubbard (“Hubbard”). Hubbard scheduled Client for a second mammogram on January 19, 2000 and a sonogram on the 21st. Both tests indicated malignancy and a biopsy later confirmed that Client had cancer. Believing that Doctor had misread her mammogram, Client retained William J. Blondell (“Co-counsel”) in May 2000 to purse an action for medical malpractice. Co-counsel filed the claim on January 21, 2003 and, the following year, referred the case to Diane Littlepage (“Attorney”). A fee-sharing agreement was executed, stating that they agreed to divide the contingency fee equally. Thereafter, Co-counsel had no further contact with Client and did not actively participate in the case. Doctor unsuccessfully asserted a statute of limitations motion, but during a pre-trail settlement conference, the judge advised Attorney that Doctor’s argument would likely prevail at trial or on appeal. Attorney reported these matters to Co-counsel, but the two did not discuss negotiations further. After continued discussions with Attorney about factors influencing the settlement (including the delayed filing of the claim by Co-counsel), Client settled the claim for significantly less than the initial demand. Attorney remitted half of the fee to Co-counsel. Co-counsel then filed claims against Attorney, alleging that her failure to communicate with him and her communications with Client about his untimely filing caused him to suffer economic and non-economic damages.
Issue: Whether a fee-sharing agreement may give rise to actionable contract and tort duties between co-counsel, other than those related to the fee itself.
Ruling: No. Because there was no breach of the terms of the fee-sharing agreement and the agreement to share equally in the profits failed to establish a joint venture, Attorney could not be liable to Co-counsel for breach of contract. The agreement simply called for an equal division of the fee and stated that Attorney would take “primary responsibly” for the representation and perform services “as requested” by Co-counsel. Attorney split the fee equally and took responsibility of the case. Co-counsel made no requests of Attorney regarding the settlement negotiations and Attorney was not obligated to consult or communicate with Co-counsel, like she would be under the terms of a partnership. Furthermore, Attorney could not have tortiously interfered with Co-counsel’s contractual relationship with Client because tortious interference requires interference from a third party and Attorney was, by virtue of the fee-sharing agreement, a party to the contract.
Lesson: When entering into a fee-sharing agreement with an attorney to whom you have referred a case, if you are concerned about his/her settlement negotiating skills and/or tactics, it may be beneficial to maintain an active role in the case.