How a secret malpractice deal unraveled

By Jane See White

Attorneys duped a court in a secret deal to tap a deep pocket in a malpractice trial. Arizona judges weren't amused.

The malpractice trial was a sham from the start, its outcome preordained by a secret deal between attorneys for both sides. Jurors who'd listened to nine days of testimony were nothing more than "props in a charade." Lawyers "hoodwinked" a judge, and transformed the physician-defendant into a "marionette" to be manipulated by attorneys for their own ends.

Those are just a few of the choice words Arizona judges had about a bizarre case that's left legal officials baffled and embarrassed. Why were they so incensed? The trial judge had been kept in the dark about a secret "sweetheart" deal. Lawyers for the defendant doctor agreed not to object to any of the plaintiff's evidence in return for a promise to dismiss the case before the jury began deliberations. The plaintiff's attorney wanted to build a record so that a hospital that had previously been dismissed from the case could be reinstated as a deep-pocket defendant.

The upshot: the Arizona Supreme Court earlier this year suspended the doctor's Phoenix lawyers, Steven Feola and Richard A. Alcorn, for six months. The creative impetus for the plan came from Timothy J. Hmielewski, a Florida plaintiffs' attorney, whose client sued ob/gyn James R. Bair, 69, after an obstetrical delivery went tragically awry.

Medical Economics was unable to contact Hmielewski, who didn't respond to telephone messages. For their part, Bair's attorneys insist that they are guilty only of zealously representing their client.

"The Supreme Court left out 90 percent of the salient facts," says Alcorn, who's working as a paralegal under an attorney's supervision during his suspension.

A crisis in the delivery suite results in tragedy

In late 1991, Bair admitted Cheryl Newcomb, a woman in her early 30s, to Scottsdale Memorial Hospital to induce labor. A crisis developed almost immediately. When Bair ruptured the membrane, releasing clear fluid, Newcomb instantly complained of shortness of breath. Although Bair performed an emergency cesarean section, Newcomb died, and her infant daughter was brain damaged.

"I never saw a case like it before or since, and I've had thousands of deliveries," says Bair. "You knew she was going to die as soon as she was in trouble. It was clearly an embolus."

An autopsy by the hospital's pathologist confirmed that the cause of death was amniotic fluid embolism.

Newcomb's widower, Thomas, a golf-cart repairman who moved to Florida after Cheryl's death, filed suit in 1993 against Bair and Scottsdale Memorial Hospital. Hmielewski told various parties in the case that he expected an award of about $18 million.

But he wasn't going to get it from Bair, who had no substantial assets and was uninsured. His malpractice carrier had gone into bankruptcy, and he didn't have tail coverage.

The physician had to finance his own defense, ultimately spending more than $40,000. To keep his legal bill down, he ordered Feola and Alcorn to do as little as possible. Fortunately, the hospital was mounting a vigorous defense, hiring expert witnesses and paying other costs.

"Basically, I was defending the whole thing for everybody," says Stephen Yost, the hospital's attorney. "The doctor had no coverage and his attorneys weren't showing up for depositions and the like. Hmielewski knew all this from the very start."

But then Yost won a motion for summary judgment, which released the hospital from the case and left Bair and his corporation as sole defendants. Hmielewski asked the judge to reconsider, but Bair's trial was scheduled to begin before that motion would be argued.

A secret deal is set in motion

That's when Hmielewski sent Bair's lawyers a letter proposing a secret deal. To the doctor and his lawyers, it seemed to make sense. "Steve Feola said Hmielewski knew I had no insurance and no money, and he suggested that if I allowed them to present whatever evidence they wanted on some kind of coverup allegation involving the hospital, they'd drop the case against me," says Bair.

If Hmielewski kept his part of the bargain, Bair would be off the hook for good. The doctor says it didn't seem like much to ask, since he had long ago told his attorneys not to object during the trial. It's not clear precisely how the patient's widower and child would benefit from the secret deal, but most parties agree with the Supreme Court's theory that Hmielewski wanted free rein in the trial in order "to 'educate' the trial judge as to the hospital's culpability."

"Hmielewski is an extraordinarily bright lawyer who made an extraordinarily stupid decision," says his Phoenix-based co-counsel Rodney Johnson.

The deal "evolved over a three- or four-week period," says Alcorn. He and Feola consulted colleagues and searched case law before the deal was spelled out in writing. The attorneys also agreed to keep the deal secret.

So in late 1995, Bair's trial began before Maricopa County Superior Court Judge William T. Moroney. A jury was seated in January 1996, and Hmielewski began presenting his case.

It wasn't long before Moroney noticed something was amiss. At one point, the judge remarked, "I've almost come to the conclusion that there has been some sort of agreement to throw out the rules of procedure for medical malpractice cases, not to mention good chunks of the rules of evidence. . . . It's not my province to tell lawyers how to try their cases. But I am very concerned that we're going to be running over."

The lawyers assured him that the trial would be wrapped up on schedule. No one mentioned that the defense wouldn't be putting on a case. Alcorn even said the defense might bring up "two or three" witnesses.

And so it went. When Hmielewski finished his case, he moved for a mistrial, arguing that some of the testimony had been untruthful. Moroney denied the motion. Hmielewski then moved to dismiss the case.

Alcorn, apparently seeking to quell the trial judge's suspicions, volunteered that the defense would make the motion to dismiss, if the plaintiffs would agree to it. Hmielewski and Alcorn asked for a few minutes to "formalize" an agreement.

At that point, the judge flatly warned, "I don't want any sweetheart deals that I am not fully informed about. . . . I don't want it crafted in some way or another that . . . would be misleading to me."

"We want to give our assurances to the court that there will be no sweetheart deals," Alcorn said. "There's no agreement regarding future testimony by Dr. Bair. . . . There's no payment of any consideration from either side in connection with the settlement."

Moroney dismissed the case.

The secret is revealed and a judge gets angry

Meanwhile, Stephen Yost, the hospital's lawyer, had gotten wind of the deal from one of the attorneys consulted earlier by Alcorn and Feola. He blew the whistle.

Trial judge Moroney was enraged: "The lawyers . . . duped the court into conducting a mock trial at the taxpayers' expense to serve their own ends. Because of that fraud on the court . . . nine citizens of this county were ordered to set aside nine working days of their lives . . . so that they could serve as props in a charade. This judge, the court staff, and the facilities of this division, were occupied for over two weeks to further a devious private purpose."

Moroney imposed a $15,000 fine on each lawyer for violating the Arizona Rules of Professional Conduct. This was upheld on appeal.

Then, in late 1998, the State Bar of Arizona charged Feola and Alcorn with violating the Rules of Professional Conduct. As that case progressed, the bar merely censured Hmielewski, who wasn't a member. Hmielewski had, however, been suspended from practicing law for three years by the Florida Supreme Court in 1997 because of his actions in another case. Johnson, Hmielewski's Phoenix-based co-counsel, argued that his own role was essentially passive. He reached a settlement with the bar, accepting a censure in addition to the fine imposed by Moroney.

The bar's hearing officer eventually concluded that Alcorn and Feola had acted in good faith and recommended that the charges be dismissed. The State Supreme Court's Disciplinary Commission reviewed the case and then voted 5-2 to suspend the lawyers for 30 days for violating the rule barring conduct involving dishonesty, fraud, deceit, or misrepresentation.

When that recommendation reached the Supreme Court, however, the justices hammered the two lawyers with six-month suspensions.

Alcorn and Feola "caused both actual and potential injuries through their conduct, and these substantial injuries extend to the (judicial) system, the jurors, the witnesses, their client, and perhaps even to the hospital," the court said.

As for Alcorn's assertion that there was no sweetheart deal, the court said, "To paraphrase Justice (Potter) Stewart (on pornography), while we may not be able to define a 'sweetheart deal,' we know enough to recognize one when we see it. If ever there was such a deal, this was it."

The court ruled out disbarment because the lawyers' "intentional deceptions and evasions were more likely the result of a failure to grasp their true obligations to the tribunal rather than an attempt to misuse the process for personal gain. We also accept the finding that respondents were motivated by an honest desire to do everything within their power to help their client."

Alcorn filed a document for the record that detailed "factual errors" and omissions in the court's opinion. He noted, for instance, that Moroney signed the order dismissing the suit against Bair "two weeks after learning of the pretrial agreement." Further, Alcorn said, the secret deal had no effect on the defense team's preparation for trial, since they couldn't be sure Hmielewski would abide by it or that it was enforceable. He also reminded the court that Bair had instructed his lawyers not to object to the plaintiffs' case.

When the dust settled, Bair was still defending himself in a Newcomb malpractice case, one that was salvaged by a new set of plaintiffs' attorneys. He moved his practice to South Carolina seven years ago.

The hospital, its pathologist, and a score of other parties were named in the suits. None of these plaintiffs' attorneys would agree to discuss the case. Cheryl Newcomb's widower, Thomas, could not be reached; a telephone number listed under his name in Naples, FL, was no longer in service.

After Moroney retired, the cases came before Superior Court Judge Rebecca Albrecht. In May, she granted motions from the various defense attorneys to dismiss the case, and this month an appeals court upheld her ruling.

Thomas Newcomb and his young daughter never collected a cent.

The author is a freelance writer based in Tucson.

 

Jane White. How a secret malpractice deal unraveled. Medical Economics 2002;16:22.