Anyone involved in a surgical malpractice case has the right to be represented by an attorney. If a person waives that right and chooses to proceed on his or her own behalf, then any attorney involved in the case can communicate directly with the person. If a person is represented by counsel, however, all communications must be sent to the person’s attorney. In a recent surgical malpractice case before a New York appellate court, the court discussed whether an attorney that violates the rules of professional conduct by speaking directly with a represented party should be disqualified from the case. If you or a loved one suffered harm due to surgical malpractice, it is wise to meet with a proficient Rochester surgical malpractice attorney to discuss your case.
Factual Background of the Case
It is reported that the plaintiff’s husband underwent surgery on his ankle. Three days after the surgery, the plaintiff’s husband died. The plaintiff subsequently filed a malpractice lawsuit against several people and entities involved in her husband’s surgery and subsequent care. During discovery, the plaintiff’s attorney sought to depose a witness who was part of the team that treated the plaintiff’s husband on the day he died, but who was not a party in the case. In the process of attempting to locate the witness, the plaintiff’s counsel was advised by an insurance company that another attorney would handle the matter for the witness.
Despite being informed that the witness was represented by counsel, the plaintiff’s counsel deposed the witness without her attorney being present. The defendants subsequently moved to strike the deposition testimony and to disqualify the plaintiff’s attorney, and the witness joined in the motion. The court found that plaintiff’s counsel violated the Professional Rules of Conduct, and granted the motion to strike, but did not disqualify plaintiff’s counsel. Defendants appealed.
Communications with Represented Parties
On appeal, the court affirmed. The court stated that the disqualification of an attorney chosen by a party is an extreme remedy that is only appropriate in cases where the attorney’s conduct is likely to taint the trial in the underlying matter. In most cases, a violation of the Professional Rules of Conduct, standing alone, is not adequate to warrant disqualification, even though it is relevant to the issue of whether the attorney’s conduct is prejudicial to the other parties.
In the subject case, the court held that although the plaintiff’s attorney inappropriately communicated with a represented witness, delayed in producing information regarding his communications, and mischaracterized the nature of his communications, his behavior did not warrant disqualification. Rather, the court found that the plaintiff’s counsel did not garner any evidence he would not have lawfully obtained via discovery. Thus, the court affirmed the trial court ruling.
Speak with an Experienced Surgical Malpractice Attorney
If you lost a loved one due to medical malpractice, it is prudent to speak with a seasoned Rochester surgical malpractice attorney regarding what claims you may be able to assert. The knowledgeable attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers have the skills and experience required to help you pursue the best outcome possible under your unique facts. We can be reached at 585-653-7343 or via our form online to set up a conference.