BEN P. WALKER AND WANDA M. WALKER v. GARY S. WEINSTEIN, M.D.
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RENDERED:
NOVEMBER 4, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2004-CA-001654-MR
BEN P. WALKER AND WANDA M. WALKER
APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BARRY WILLETT, JUDGE
ACTION NO. 98-CI-005642
v.
GARY S. WEINSTEIN, M.D.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, KNOPF, AND VANMETER, JUDGES.
KNOPF, JUDGE:
Ben and Wanda Walker, husband and wife, appeal
pro se from a summary judgment of the Jefferson Circuit Court,
entered July 19, 2004, dismissing various defamation-related
damages claims against Douglas Wilson and C. Lloyd Vest,
investigator and counsel, respectively, for the Kentucky Board
of Medical Licensure (KBML or the Board), and refusing to
reinstate like claims against Gary S. Weinstein, M.D., a Board
consultant.
The Walkers allege that in the course of
investigating and bringing a disciplinary action against Dr.
Michael Pravetz, the Walkers’ former psychiatrist, Wilson, Vest,
and Weinstein invaded the privacy of the Walkers’ medical
records and made defamatory statements regarding their mental
health, their use of medications, and their relationship with
Dr. Pravetz.
The trial court erred, they contend, by ruling
that Wilson and Vest had limitations and immunity defenses to
all of the Walkers’ claims and that the claims against Weinstein
had been dismissed.
Because the Walkers failed to name Wilson
and Vest in their notice of appeal, this Court did not acquire
jurisdiction to address the Walkers’ contentions with respect to
them.
With respect to Weinstein, we affirm the trial court’s
order upholding his dismissal.
In 1996 the KBML received an anonymous but detailed
letter alleging that Dr. Pravetz had violated several ethical
and professional responsibilities, including over-prescribing
addictive medications, becoming personally involved with
patients, and making fraudulent insurance claims.
The Board
assigned Wilson to investigate the allegations, and he soon
learned that the Walkers were among Dr. Pravetz’s patients.
When the Walkers would not consent to have their prescription
and treatment records inspected, Wilson had the records seized.
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Dr. Pravetz had diagnosed the Walkers as depressed and
had prescribed for them anti-depressants and a sleep aid,
chloral hydrate, a controlled substance regarded as highly
addictive.
Apparently Wilson prepared a summary of the Walkers’
prescriptions for a two-year period and asked several of the
Board’s consulting physicians to comment on the propriety of
their treatment.
Unanimously, the physicians questioned the use
of chloral hydrate, as there were safer alternatives, and
expressed concern at both the large doses Ben, in particular,
had received, as well as the long course of treatment with such
an addictive drug.
Wilson also knew that Ben worked as a special agent
for the Federal Bureau of Investigation.
Without Ben’s
permission, Wilson discussed Ben’s prescriptions with another
agent in Ben’s field office.
He also complained that Ben was
obstructing the investigation of Dr. Pravetz and expressed
suspicions that Ben and Dr. Pravetz might be in cahoots.
Soon
thereafter, at the FBI’s request, Vest and Wilson repeated those
concerns to other bureau agents and revealed the summary of
Ben’s prescriptions.
The Bureau suspended Ben’s employment and
subjected him to a fitness-for-duty inquiry.
Bureau cleared Ben to return to work.
Eventually the
He regarded his
reassignment and the conditions attached to it as so demeaning,
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however, and was so soured by the inquiry process that he opted
instead for early retirement.
In the meantime, Wilson’s investigation of Dr. Pravetz
continued and led to disciplinary charges which were heard by
the Board during the spring of 1998.
Among much other evidence
of Dr. Pravetz’s violations, Dr. Weinstein testified in accord
with the other consulting physicians that the Walkers’ chloral
hydrate prescriptions were questionable, at best.
Before a
decision could be rendered, Dr. Pravetz voluntarily agreed to
surrender his Kentucky medical license.
The Walkers filed this case in October 1998, alleging
not only that Wilson and Vest had breached the privacy of their
medical records by sharing them with the FBI, but also that
Wilson had falsified the prescription records to exaggerate the
amount of chloral hydrate they had received and had falsely
accused Ben of being sexually involved with Dr. Pravetz and of
participating in Dr. Pravetz’s alleged insurance fraud.
Vest
and Weinstein, they complained, had violated their privacy by
failing to protect their anonymity during the Pravetz
investigation and had either repeated or lent support to
Wilson’s alleged defamations.
In July 2000, the attorney who filed the complaint was
permitted to withdraw, and the next month the Walkers obtained
substitute counsel.
New counsel did not believe that the
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Walkers had a good faith claim against Dr. Weinstein and so from
the beginning of his representation urged them to dismiss the
complaint against him.
For a long time the Walkers resisted
that advice, but in October 2003, Mrs. Walker authorized counsel
to settle with Weinstein in exchange for Weinstein’s affidavit
stating that he had relied on representations made by Wilson and
Vest and his agreement not to seek sanctions for having been
improperly sued.
In November 2003, counsel sent a draft of the
agreement and the affidavit to the Walkers for their approval.
They made changes to the affidavit and returned both to counsel.
On December 8, 2003, counsel for the parties executed the
agreement, and it was entered in the record.
A month later, however, the Walkers moved to reinstate
their complaint against Weinstein.
They argued that counsel had
exceeded his agency by executing and entering a settlement they
had not authorized.
They also sought sanctions against both
their own counsel and defense counsel for allegedly having
conspired to undermine their claim against Weinstein.
then, the Walkers have proceeded pro se.
Since
Following a pre-trial
conference at which these matters were addressed, the trial
court denied the Walkers’ motions.
In the same order, the court
granted Vest and Wilson’s motions for summary judgment.
from those rulings that the Walkers have appealed.
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It is
In City of Devondale v. Stallings, 1 our Supreme Court
held that this state’s reviewing courts acquire appellate
jurisdiction over only those parties expressly named in a timely
notice of appeal.
Indirect references to other parties, such as
“etc.” or “et al.” are not sufficient. 2
The Walkers’ notice of
appeal violated this rule:
Ben P. Walker and Wanda M. Walker
v.
Gary S. Weinstein, M.D., et al.
We, Ben and Wanda Walker, pro se, do hereby
serve notice of appeal of the order of
Jefferson County Circuit Court, Division I,
entered by Judge Barry Willett on July 19,
2004 attached herewith.
Because the notice names no appellee other than Dr.
Weinstein, our jurisdiction is limited to reviewing the Walkers’
contention that their settlement with him should have been
vacated.
Vest and Wilson were not made parties to the appeal,
and thus we may not review or disturb the summary judgments in
their favor.
As a general rule, “[w]ithout authority from the
client, a lawyer has no right to settle a case.” 3
Whether the
client authorized a settlement is a question of fact to be
1
795 S.W.2d 954 (Ky. 1990).
2
CR 73.03; Schulz v. Chadwell, 548 S.W.2d 181 (Ky.App. 1977).
3
Clark v. Burden, 917 S.W.2d 574, 575 (Ky. 1996).
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determined from the totality of the surrounding circumstances. 4
This Court reviews the trial court’s finding under the clearly
erroneous standard. 5
Here, substantial evidence supports the trial court’s
finding that the Walkers authorized the settlement of their
claim against Dr. Weinstein.
As noted above, the Walkers have
been actively involved in their case from the beginning and knew
full well their attorney’s desire to dismiss Dr. Weinstein.
In
October 2003, Wanda expressly approved that dismissal, and then
Ben ratified the decision by editing and returning the draft
agreement and affidavit without making clear any contrary
intent.
Notwithstanding the Walkers’ ambivalence and eventual
change of heart, the trial court did not clearly err by finding
from this evidence that they had authorized the settlement their
counsel executed and entered on December 8, 2003.
Accordingly,
we affirm that portion of the July 19, 2004, judgment of the
Jefferson Circuit Court upholding the dismissal of Dr.
Weinstein.
ALL CONCUR.
4
Id; Ford v. Beasley, 148 S.W.3d 808 (Ky.App. 2004).
5
Ford v. Beasley, supra.
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BRIEFS FOR APPELLANTS:
BRIEF FOR APPELLEE:
Ben and Wanda Walker, pro se
Kingston, Tennessee
Gregory D. Stumbo
Attorney General of Kentucky
D. Brent Irvin
Assistant Attorney General
Frankfort, Kentucky
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