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XYZ v. Sykes

Court of Appeals of Indiana

November 13, 2014

XYZ, D.O., Appellant-Defendant,
v.
ROBIN SYKES and THOMAS WILLIAMS, Appellees-Plaintiffs, and ABC HOSPITAL, Defendant

APPEAL FROM THE JOHNSON SUPERIOR COURT. The Honorable Lance D. Hamner, Judge. Cause No. 41D03-1212-CT-156.

ATTORNEYS FOR APPELLANT: DAVID J. BEACH, MALLORY R. INSELBERG, Eichhorn & Eichhorn, LLP, Hammond, Indiana.

ATTORNEYS FOR APPELLEE: KEVIN P. McGOFF, KARL L. MULVANEY, ALEX E. GUDE, Bingham Greenebaum Doll, LLP, Indianapolis, Indiana.

CRONE, Judge. BAKER, J., and MATHIAS, J., concur.

OPINION

Page 583

CRONE, Judge

Case Summary

XYZ, D.O. (" Doctor" ) brings an interlocutory appeal from the trial court's denial of his motion to disqualify attorney Michael S. Miller and the law firm of Montross, Miller, Muller, Mendelson & Kennedy (collectively " MMMMK" ) from representing Robin Sykes and Thomas Williams (" the Plaintiffs" ) in their suit for negligence and loss of consortium against Doctor and ABC Hospital (" the Hospital" ). Doctor moved to disqualify MMMMK arguing that MMMMK has an imputed conflict of interest because one of its current employees, attorney Kathleen Clark, previously represented Doctor as his primary lawyer in six medical malpractice cases. Doctor asserts that the trial court abused its discretion in denying the motion to disqualify. We agree with Doctor and therefore reverse the trial court's decision and remand for further proceedings.

Facts and Procedural History

The relevant facts indicate that Clark is an attorney currently employed at MMMMK. In 2003, prior to working at MMMMK, Clark maintained a practice as a civil defense attorney at her own law firm, Clark & Associates. It was during that time that Clark began her attorney-client relationship with Doctor after he was named as a defendant in the medical malpractice matter of Timbrook v. XYZ, D.O., et al. On June, 26, 2003, Clark entered her appearance as Doctor's sole attorney in that case. On August 1, 2003, Clark entered her appearance as Doctor's sole attorney in another medical malpractice case, Couch v. XYZ, D.O., et al. By

Page 584

May 2004, Clark had moved to the law firm of Eichhorn & Eichhorn, and she proceeded to represent and defend Doctor in Timbrook and Couch, as well as four additional medical malpractice cases. In the course of her representations of Doctor, it was Clark's practice and routine to obtain Doctor's thoughts and mental impressions about each case, discuss and formulate discovery responses, and prepare Doctor for depositions. Clark's representation of Doctor concluded in April 2005, after she left her employment at Eichhorn & Eichhorn. In each of the six cases, a medical review panel eventually found in favor of Doctor.

Clark began her full-time employment at MMMMK in February 2010. Clark currently works as an " intake attorney," conducting initial interviews with potential clients to obtain case summaries and relevant information to determine if MMMMK will pursue representation. Tr. at 83. Clark prepares reports of the information she obtains regarding these potential cases and presents them at bimonthly meetings with other law firm members.

In the summer of 2012, Clark conducted the intake interview for the Plaintiffs' medical malpractice injury claim in this case. Clark recognized the name of the physician involved as that of Doctor, her former client whom she had represented and defended in multiple medical malpractice cases. Nevertheless, she obtained information from the Plaintiffs and later presented the summary of the Plaintiffs' claim during a firm meeting. Thereafter, MMMMK attorney Miller elected to take the case. MMMMK gathered the relevant medical records, and, at Miller's direction, Clark prepared a timeline of events for his review regarding the circumstances surrounding the Plaintiffs' injuries.

MMMMK filed a proposed complaint on behalf of the Plaintiffs with the Indiana Department of Insurance on August 15, 2012, and a complaint for damages against Doctor and the Hospital in Johnson Superior Court on December 13, 2012. Count I of the complaint states a negligence claim against both Doctor and the Hospital, alleging that Doctor negligently performed spinal surgeries on Sykes and that the Hospital " negligently credentialed" Doctor with respect to those surgeries. Appellant's App. at 11. Count II of the complaint raises a loss of consortium claim on behalf of Williams.

In April 2013, Doctor's attorney sent a letter to MMMMK asserting that MMMMK had violated the Indiana Rules of Professional Conduct by representing Plaintiffs in this case and indicating that MMMMK should withdraw from representation. In response to that letter, on June 1, 2013, MMMMK implemented " internal security procedures" to screen Clark from participation in the case even though MMMMK believed that such a " screen was unnecessary under the circumstances." ...


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