In its opinion rendered on September 27, 2018, the Supreme Court of Kentucky (“Kentucky Supreme Court”) held that dismissal with prejudice of the plaintiff’s medical malpractice birth injury lawsuit brought by the infant’s “next friend” (mother) after the plaintiff’s Kentucky medical malpractice lawyer was allowed to withdraw his appearance in the case was prejudicial error that required reversal and remand.
The Kentucky birth injury medical malpractice lawsuit was filed against the defendant obstetrician who allegedly committed medical malpractice in delaying the delivery of the baby, resulting in profound permanent injuries. The baby’s mother filed the Kentucky medical malpractice lawsuit as “next friend” of her child.
The plaintiff’s medical malpractice lawyer filed a motion to withdraw his appearance shortly before trial, citing irreconcilable differences with the plaintiff and a breakdown in communication as grounds for withdrawal. After a six-minute hearing that mainly discussed scheduling issues, the trial court ordered the withdrawal of the plaintiff’s medical malpractice lawyer and ordered the plaintiff to have another lawyer enter an appearance or to proceed in proper person.
The pro se plaintiff was unable to find another lawyer to enter an appearance and the plaintiff missed several discovery deadlines set by the trial court. The trial court subsequently granted the defense motion to dismiss with prejudice, finding that the plaintiff had engaged in the unauthorized practice of law because she was proceeding as “next friend” and was not a party in the lawsuit, and struck the plaintiff’s experts because she failed to find an attorney within a set period of time.
The plaintiff found a lawyer to file a notice of appeal on her behalf. The lower appellate court affirmed, holding that the plaintiff did engage in the unauthorized practice of law, thus it was proper for the trial court to strike her pleadings and grant summary judgment to the defendant. The Kentucky Supreme Court granted discretionary review.
Kentucky Supreme Court Opinion
The Kentucky Supreme Court held, in part: “in actions brought by a “next friend,” the minor or incompetent is the real party in interest and the lawyer’s duty is to such minor or incompetent. The record is completely void of any evidence that irreconcilable differences or a breakdown in communication occurred between [the plaintiff] and counsel. But more accurately, and certainly more importantly, the record is completely void of even an inquiry into whether irreconcilable differences or a breakdown in communication had occurred between counsel and his client, [the child] … Because the trial court did not inquire into the justification for counsel’s withdrawal from the case, we find that the trial court acted unreasonably and unfairly to [the child’s] substantial detriment … Additionally, the trial court’s grant of permission for counsel to withdraw is not within the allowance of the rule because it could not be accomplished without material adverse effects on the client, [the child]. SCR 3.130(1.16)(b)(l).”
The Kentucky Supreme Court went on to state: “we direct the trial court to hold the case in abeyance for a reasonable time for [the plaintiff] to secure counsel. If substitute counsel cannot be found in a reasonable amount of time, then the trial court should strongly consider dismissing the case without prejudice … The proper procedure is for the trial court to abate the action pending procurement of replacement counsel, and, if such attempt is not successful, dismiss the case without prejudice, leaving available to the real party in interest the ability to bring his or her claims when minority or disability is removed, or the party is otherwise able to present his case to the courts.”
Unauthorized Practice Of Law
In Kentucky, the practice of law is defined as “any service rendered involving legal knowledge or legal advice, whether of representation, counsel or advocacy in or out of court, rendered in respect to the rights, duties, obligations, liabilities, or business relations of one requiring the services.” SCR 3.020.
The Kentucky Supreme Court stated that it could not find any cases “from this jurisdiction or any jurisdiction in the country, where a trial court erroneously ordered pro se representation constituting the unauthorized practice of law.” The Kentucky Supreme Court held that the plaintiff “did not engage in the unauthorized practice of law because she was specifically authorized and ordered to proceed as such according to the circuit court’s order … The law is well settled that the parties are bound by a pre-trial order.”
The Kentucky Supreme Court continued: “Once the Hardin Circuit Court entered its order directing [the plaintiff] to find replacement counsel or to automatically be deemed to proceed pro se, and after [the plaintiff’s] subsequent inability to procure counsel, [the plaintiff] was obligated to do as the trial court ordered. Because the trial court did not extend the deadlines regarding expert disclosures, and because the trial court entered the order days before such disclosures were due, [the plaintiff] had to follow the court’s directive, for not doing so would have made her not only non-compliant with a court-ordered obligation but also potentially subject to the court’s contempt power.”
The Kentucky Supreme Court held: “This issue is a matter of first impression and this Court has never held that a next friend representing the real party in interest has engaged in the unauthorized practice of law when explicitly directed by the trial court to proceed in such a manner. Therefore, no conflict exists between KRS 524.130 and CR 16, and we hold that [the plaintiff] did not engage in the unauthorized practice of law. This holding is necessarily narrow as we find it a rare oddity for trial courts to explicitly direct those unauthorized to practice law to engage in the practice of law.”
The Kentucky Supreme Court further held: “[The defendant’s] request that [the plaintiff] be deemed to proceed pro se, whether because of strategy or otherwise, and the trial court’s erroneous order constitutes manifest injustice that ‘seriously affected the fairness, integrity, or public reputation of the proceeding.'”
Importantly, the Kentucky Supreme Court further held: “a “next friend” cannot provide pro se representation to the real party in interest.” The Kentucky Supreme Court explained: “the interests of the “next friend” and the interests of the real party in interest may not always be aligned. When such respective interests become adverse, the “next friend” no longer acts as agent for the minor or incompetent because the only reason the “next friend” is even a nominal party in the case, rests upon the premise that the “next friend” brings the minor or incompetent’s claims … Because such adverse interests disqualify an otherwise appropriate “next friend,” we also hold that the “next friend” is precluded from providing pro se representation in such capacity.”
In remanding the case to the trial court, the Kentucky Supreme Court stated, “The circuit court shall conduct an appropriate hearing on [the plaintiff’s] counsel’s motion to withdraw and shall proceed accordingly.”
Source Azmat v. Bauer, 2016-SC-000560-DG.
If you or your baby suffered a birth injury (or worse) during labor and/or delivery in Kentucky or in another U.S. state, you should promptly find a Kentucky birth injury lawyer, or a birth injury lawyer in your state, who may investigate your birth injury claim for you and represent you and your child in a birth injury medical malpractice case, if appropriate.
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