The Fentanyl Fiasco

By Andrew Delaney

Puppolo v. Donovan & O’Connor, LLC, 2011 VT 119 (mem.).

Be careful when you turn down a case. 

Dear Aunt Eva died from heart failure.  She was eighty-three years old and a patient in a nursing home.  Eva’s niece arrived minutes after Eva died.  The niece saw Fentanyl patches on Aunt Eva and concluded that Aunt Eva died due to a Fentanyl overdose.  Eva’s doctor claimed that the Fentanyl was for severe-pressure-ulcer pain, but Eva’s niece knew better. 

        

Eva’s niece suspected that Aunt Eva died due to a Fentanyl overdose.  So she reported her aunt’s death to the police and requested an autopsy.  The autopsy concluded Eva had died of natural causes.  After completing its investigation, the police department closed the case. 

Eva’s niece also filed a complaint with the Department of Aging and Disabilities, which gives us a the-greatest-ever acronym to work with—DAD.  DAD conducted a surprise investigation of the nursing home but found no regulatory violations.  DAD also found that due to Eva’s overall medical condition, there was no way to prevent pressure ulcers.  DAD even went so far as to threaten to, “Turn this car around, right now, and go straight home.”  Okay, I made that last part up.  DAD essentially found no wrongdoing.    

The niece was not so easily convinced.  So she talked to an attorney, the defendant here, about bringing wrongful death and survivorship claims against the nursing home and the attending physicians.  So, there’s the autopsy report, the results of the police and DAD investigations, and, you know, basically, no case. 

So the attorney declined to take the case.  But that’s not the mistake.    

The Plaintiff in this case is Eva’s estate, or more accurately perhaps, the executor of the estate, Eva’s niece.  When the defendant turned the case down, he told the niece that the limitations period for the survival action began to accrue when she was appointed executor of the estate. 

Wrong.  The limitations period had actually begun to accrue two months earlier when the original executor was appointed.  He also failed to mention the specific two-year limitations period for the wrongful-death action. 

Oops.  The niece found another attorney willing to file a complaint just shy of three years from her Aunt’s death.  But the claims were dismissed as time-barred.  

Two years later, almost to the day, the niece sued the attorney who declined the case initially, claiming that her reliance on his legal advice deprived her of the opportunity to pursue wrongful death and survivorship claims for her aunt’s death.   

The case proceeded through discovery toward trial.  Shortly before jury draw, though, the niece contacted her current attorney by e-mail.  She requested that he withdraw his appearance.  So he did.  He filed a motion to withdraw one day before the jury draw.  The trial court reviewed the motion the day after the jury draw and set it for hearing on the first day of trial.  The trial court sent an entry order on this directly to the niece and indicated that it was unlikely to allow plaintiff’s attorney to scamper off this close to trial. 

Two days before the hearing and trial, the niece filed a pro se motion to recuse the trial judge.  Her attorney, apparently, had refused to do this, which was part of the reason the niece wanted him to quit.  The following day, the chief administrative judge issued an order to replace the trial judge—not because there was a conflict, but to ensure that this motion would not prevent the trial going forward. 

The replacement judge took up the motion to withdraw on the first morning of trial.  Plaintiff appeared and told the court why she needed to rid herself of her attorney.  In brief, the reasons she gave  were: 1) ‘major tactical disagreements’ in an attempted mediation; 2) her preferred expert was way more badass than the one her attorney eventually retained; 3) her attorney refused to argue that certain of her aunt’s medical records had been falsified; and 4) the refusal to seek disqualification of the trial judge.  There was also an issue with the attorney having forgotten a ‘very important detail’ regarding Aunt Eva’s coronary disease—this made the niece question her attorney’s competence. 

The trial court denied the motion to withdraw, explaining that good cause must be shown under the Rules as the case had been set for trial.  The trial court found that the niece’s reasons did not amount to good cause.  The court noted that the judge the niece sought to recuse had in fact been recused.  Accordingly, the issue was moot.  The court also noted that the issues between the niece and her attorney were mostly strategic disagreements, and noted that trial strategy is traditionally the attorney’s department. 

The incompetence argument didn’t get far.  The court noted that the attorney “demonstrated a grasp of the facts and an impressive ability to recall dates and details of the case.” 

Furthermore giving the niece time to find new counsel on the eve of trial would create an undue burden on the court, the defendant, and the jurors.  So justice rolls on and niece and her attorney have to endure the legal equivalent of a Neil Simon play. 

Trial commenced, and not too surprisingly, jury found for defendant.  Niece appealed.

On appeal, the niece first contends that the trial court erred in denying the motion to withdraw counsel because she did not have appropriate notice of the first-day-of-trial hearing.  The SCOV notes that the niece had adequate notice and does not give much credence to niece’s “but-the-entry-order-was-all-like-confusing-and-stuff” argument.

Niece also claims that the hearing on the motion to withdraw failed to meet implied promptness requirements.  The argument is interesting, even if a bit stretched—essentially, it’s a constitutional-right-to-counsel-requires-promptness-even-when-the-rule-doesn’t-mention-a-timeframe argument.  “Not raised below, not preserved for appeal” says the SCOV and moves on. 

Niece argues that she didn’t get a chance to say enough bad stuff about her attorney—specifically that the court erred when it did not allow her to elaborate on events that took place during the mediation.  The SCOV notes that the trial court addressed each of niece’s stated grounds and concerns below in concluding that the trial court’s ruling was harmless and does not provide grounds for reversal. 

Finally, niece contends that the court erred in failing to find good cause for the motion to withdraw.  She cites “her concerns about her attorney’s choice of expert witness, his refusal to pursue a falsified records claim, his competency, and his refusal to move to recuse the original trial judge.”  The SCOV reviews the trial court’s ruling on a motion to withdraw for abuse of discretion.   

In so reviewing, the SCOV once again notes that the trial court addressed each of the niece’s stated grounds and concerns below.  Trial strategy decisions are the attorney’s to make. 

Regarding competency, the trial court made specific findings that the attorney had impressive recall.  At the hearing, the niece even “conceded that her attorney ‘knew the law backwards and forwards’ and was a ‘wonderful attorney’ who would be an ‘asset’ to her case.”  The SCOV concludes that the trial court did not abuse its discretion and that denial was proper.

Niece also contends that it was plain error for the trial court to allow the defendant attorney to testify to his opinion of the merits of the underlying medical malpractice case and to discuss the autopsy and DAD reports. 

The SCOV, however, does not review for plain error because niece does not suggest that this final oversight deprived her of a fundamental right or that one was even involved. 

Niece’s appeal also takes issue with the trial court.  In her final argument, she alleges that the trial court botched it when it allowed a defense expert witness to testify as to the use of Fentanyl in pressure ulcer pain management and the likelihood that Fentanyl caused Aunt Eva’s death because this testimony exceeded Defendant’s expert disclosure statement.  Defendant’s disclosure essentially said that the expert would testify as to whether the treatment of the ulcer met the applicable standard of care.  He was not deposed.   

The expert testified that Aunt Eva’s treatment met the standard of care, that pain management was part of the treatment for a pressure ulcer, and that the idea that Aunt Eva was poisoned be Fentanyl was ridiculous.  Plaintiff’s counsel objected vehemently arguing that it was outside the scope of disclosure.  He even filed a post judgment motion for new trial claiming Plaintiff was subjected to “trial by ambush.” 

The trial court denied the objections and the motion, explaining that the use of Fentanyl fit within the scope of the expert disclosure—it was related to the care and treatment of the pressure ulcer.  The trial court also noted that Plaintiff chose not to avail herself of discovery procedures—like a deposition—and so could not claim unfair surprise.  The SCOV reviews this decision on expert testimony for abuse of discretion.

The SCOV finds none.  It agrees with the trial court that the use of Fentanyl was well within the scope of disclosure.  The cause-of-death testimony is a little murkier, but the SCOV leaves it to the discretion of the trial court. 

Regarding niece’s claim of unfair surprise in her post-trial motions, and the trial court’s disallowance of those claims, the SCOV notes that when a party does not move for a continuance immediately following claimed unfair surprise, such claims are considered waived.  Trial court did not abuse discretion.  Case closed.

Despite niece’s contentions, the SCOV appears to conclude that her disagreements with her attorney were either off base or of the no harm, no foul.  Ironically, given that this was a legal malpractice case, it may become the basis for a second malpractice case.  Since the basis of each malpractice case is essentially a re-trial of the underlying claim that the lawyer allegedly messed up, the next action could essentially be a re-trial of this case, which was in and of itself a re-trial of the medical malpractice case that never occurred.  In others words, niece could find herself trapped in her own version of Marat/Sade or this.