JOHN L. SABA, M.D.; KIMBERLY SABA v. ST. JOSEPH HEALTHCARE, INC.; LYLE MYERS, M.D.
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RENDERED:
MARCH 31, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2005-CA-000917-MR
AND
NO. 2005-CA-001050-MR
JOHN L. SABA, M.D.;
KIMBERLY SABA
v.
APPELLANTS
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE SHEILA R. ISAAC, JUDGE
ACTION NOS. 02-CI-01413 & 03-CI-01156
ST. JOSEPH HEALTHCARE, INC.;
LYLE MYERS, M.D.
APPELLEES
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE: GUIDUGLI AND SCHRODER, JUDGES; MILLER, SENIOR JUDGE.1
MILLER, SENIOR JUDGE:
John L. Saba, M.D., and his wife,
Kimberly Saba, appeal from an order of the Fayette Circuit Court
dismissing their two lawsuits against Saint Joseph Healthcare,
Inc. (Saint Joseph) and Lyle Myers, M.D., for failing to
diligently prosecute their lawsuits and for failing to comply
with an order of the circuit court to timely obtain a substitute
1
Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
Kentucky Revised Statute 21.580.
attorney to represent them in the actions.
The lawsuits concern
an employment dispute involving the suspension of Dr. Sabo
following untrue allegations of sexual abuse made by a patient.
For the reasons stated below, we affirm.
On February 1, 2001, Dr. Saba was granted unqualified,
provisional medical staff privileges at St. Joseph Hospital in
Lexington.
Dr. Saba's medical staff privileges were in urology,
a field in which he has been board certified since 1978.
On March 19, 2002, a female patient appeared at Dr.
Saba’s office for a scheduled surgical evaluation.
The patient
had been referred to Dr. Saba because she had not responded to
prior treatment for an incontinence problem.
In the course of
the appointment, Dr. Saba performed a physical examination and a
bladder ultrasound on the patient.
For some reason, the patient
believed that in the course of the examination and ultrasound
procedure Dr. Saba improperly fondled her breasts.2
As was his practice, Dr. Saba had a female chaperone
with him, Ashley Elam, a Certified Medical Assistant, when he
treated the patient.
The patient reported her accusation to
hospital management.
For some reason, Elam corroborated the
patient’s allegation,3 and on March 20, 2002, Saba’s hospital
2
The record discloses that the patient had been diagnosed with various
psychological problems.
3
The record discloses that Dr. Saba and Elam had experienced difficulties in
their working relationship.
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privileges were suspended by Dr. Myers, Chairman of the Medical
Staff Governing Council of Saint Joseph.
On April 3, 2002, Saba, by counsel Kent Masterson
Brown, filed a “Verified Complaint for Declaratory Judgment,
Temporary Restraining Order, Temporary Injunction, Permanent
Injunction and Damages” in Fayette Circuit Court (Case No. 02CI-1413).
The Complaint alleged causes of action on theories of
breach of contract, violation of medical staff bylaws and his
rights to fair process, and breach of occupancy agreement.
Named as defendants were Saint Joseph Healthcare, Inc. and Lyle
Myers, M.D.
On April 9, 2002, the circuit court held a hearing
on Saba’s Motion for Temporary Injunction, following which the
motion was denied.
On April 26, 2002, the defendants filed their answer
in Case No. 02-CI-1413, and on July 9, 2002, filed a motion to
dismiss the action.
The motion to dismiss argued that the
circuit court did not have jurisdiction over the matter pending
the completion of administrative proceedings under the hospital
bylaws.
In the alternative, the defendants requested that the
action be stayed pending the exhaustion of the administrative
process.
The defendants’ motion to dismiss was not granted at
this time, and litigation proceeded, including the filing of
discovery requests by Dr. Saba and the taking of the deposition
of the accusing patient in October 2002.
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On April 11, 2002, administrative proceedings before
the St. Joseph Medical Governing Council began pursuant to the
hospital’s bylaws.
At this time the Council voted that Dr.
Saba’s suspension should remain in effect; the decision was
subsequently upheld by the St. Joseph Board of Directors.
On March 18, 2003, Dr. Saba and his wife, Kimberly
Saba, now represented by Larry B. Franklin, filed Case No. 03CI-1156 in Fayette Circuit Court.
The Sabas pleaded causes of
action for defamation, including false, unprivileged statements
to the Kentucky Board of Medical Licensure (KBML) and the
National Practitioner Data Bank; fraudulent inducement; the tort
of outrage; interference with contractual relations;
interference with existing and prospective business relations;
and breach of duty as established by the hospital bylaws
applicable to doctors practicing at the defendant corporation’s
hospitals.
On April 18, 2003, an agreed order was entered by the
circuit court consolidating Case Nos. 02-CI-01413 and 03-CI01156 and staying the cases until Dr. Saba had exhausted his
administrative remedies.
Hearings pursuant to the hospital bylaws began on
February 12, 2003.
On April 18, 2003, the Hearing Committee
issued a memorandum terminating the suspension of Dr. Saba’s
clinical privileges.
Hearings before the KBML commenced in
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January 2002 and concluded in May 2003.
On August 19, 2003, the
Hearing Officer entered findings of fact and a recommended order
exonerating Dr. Saba.
On October 21, 2003, the KBML entered an
order accepting in whole the Hearing Officer’s recommended
order, thus concluding the administrative proceedings.
Following the conclusion of the administrative
proceedings, on December 11, 2003, Thomas E. Clay was
substituted as the Sabas’ counsel.
On January 13, 2004, the
Sabas filed a motion to compel the defendants to answer
discovery requests previously served upon the defendants.
The
parties appeared for a hearing on the Sabas’ motion to compel on
January 23, 2004.
The defendant’s filed notice of service of
their discovery answers on February 13, 2004.
On February 25, 2004, citing irreconcilable
differences with his clients, Thomas Clay moved to withdraw as
counsel for the plaintiffs, which was thereafter granted.
On
April 23, 2004, David J. Guarnieri entered an appearance on
behalf of the Sabas.
The plaintiffs deposed defendant Lyle
Myers on September 9, 2004.
This was the last substantive step
taken prior to the dismissal of the present actions.
By motion filed October 6, 2004, Guarnieri moved to
withdraw as counsel for the Sabas, citing irreconcilable
differences.
On October 29, 2004, the circuit court entered an
order granting Guarnieri’s motion to withdraw.
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The order
further provided that “[t]he plaintiffs shall have 45 days in
which to have new counsel enter an appearance during which
period of time the defendants shall take no substantive action
in this matter.”
Hence, pursuant to this order, the Sabas had
until December 13, 2004, to obtain substitute counsel.
On December 9, 2004, attorney Ed Dove contacted the
defendants and advised them that a representative of Dr. Saba
had contacted him about potentially representing the Sabas, but
that he had not yet reached a decision on the matter.
The
defendants advised Dove that they would be willing to grant the
Sabas an additional 30 days to secure counsel without the need
for court intervention.
Dove, however, never entered an
appearance on behalf of the Sabas.
On March 15, 2005, the defendants filed a motion to
dismiss upon the grounds that the Sabas had failed to comply
with the circuit court’s October 29, 2004, order by failing to
obtain substitute counsel within 45 days, and because the
plaintiffs had otherwise failed to prosecute the actions in a
diligent manner.
A hearing was held on the motion on March 25,
2005, prior to which no response was filed by the plaintiffs.
At the hearing Robert L. Abell appeared before the court and
stated that (1) the Sabas had contacted him sometime prior to
March 11, 2005, regarding the cases and had provided him with
materials relevant to the case, and that (2) he intended to
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enter an appearance on the plaintiffs’ behalf upon reaching
terms of representation, and that he anticipated doing so that
day or soon thereafter.
Nevertheless, at the conclusion of the hearing the
circuit court ordered that the case be dismissed; an order
dismissing the case was thereafter entered on April 4, 2005.
On
May 3, 2005, the Sabas filed their notice of appeal from that
order (Case No. 2005-CA-000917-MR).
In the meantime, Robert L. Abell filed a notice of
appearance for the Sabas, and on April 25, 2005, the plaintiffs
filed a motion pursuant to Kentucky Rules of Civil Procedure
(CR) 60.02 requesting that the circuit court set aside its April
5, 2005, order dismissing the cases.
On May 4, 2005, the
circuit court entered an order denying the Sabas’ motion.
On
May 20, 2005, the Sabas filed their notice of appeal in Case No.
2005-CA-001050-MR.
Before us, the appellants contend that the circuit
court erred by dismissing their claims.
Specifically, the
appellants claim that the trial court erred because only four
and one-half months elapsed between the discharge, over their
protest, of counsel Guarnieri; the appellants demonstrated
efforts to secure counsel during this period; present counsel
appeared at the hearing to dismiss and indicated that he was
near finalizing an agreement to represent the appellants in the
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matter; and because substantial factual developments had
occurred in the administrative proceedings.
The circuit court dismissed the actions on the basis
that the plaintiffs had failed to comply with the circuit
court’s order dated October 29, 2004, and had otherwise failed
to prosecute the actions in a diligent manner.
Based upon these
reasons for the dismissal, we construe the dismissal as pursuant
to CR 41.02.
CR 41.02(1) provides that “[f]or failure of the
plaintiff to prosecute or to comply with these rules or any
order of the court, a defendant may move for dismissal of an
action or of any claim against him.”
Because of the grave consequences of a
dismissal with prejudice, we have no doubt
that such a dismissal pursuant to either CR
41.02 for failure to prosecute or CR 77.02
should be resorted to only in the most
extreme cases, see 9 C. Wright & A. Miller,
Federal Practice and Procedure § 2369
(1971), and that this Court should carefully
scrutinize the trial court's exercise of
discretion in doing so. This kind of
dismissal may even raise questions of
constitutional import. Cf. Societe
Internationale pour Participations
Industrielles v. Rogers, 357 U.S. 197, 78
S.Ct. 1087, 2 L.Ed.2d 1255 (1958). Less
drastic remedies, including dismissal
without prejudice, would normally suffice to
punish a dilatory, but not recalcitrant,
party where the rights of other parties have
not been prejudiced by the delay.
Polk v. Wimsatt, 689 S.W.2d 363, 364-365 (Ky.App. 1985).
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In ruling on a motion for involuntary dismissal, the
trial court must take care in analyzing the circumstances and
must justify the extreme action of depriving the parties of
their trial.
Scarborough v. Eubanks, 747 F.2d 871 (3rd Cir.
1984), gives a worthwhile guideline for analysis of these
situations under Fed.R.Civ.P. 41(b), which is our counterpart
rule on the federal side.
Considering whether a case should be
dismissed for dilatory conduct of counsel, trial courts should
consider the Scarborough case and these relevant factors:
1)
the extent of the party's personal responsibility; 2) the
history of dilatoriness; 3) whether the attorney's conduct was
willful and in bad faith; 4) meritoriousness of the claim; 5)
prejudice to the other party, and 6) alternative sanctions.
Id., pp. 875-878.
Although CR 41.02(1) refers to dismissal of
an action or a claim therein as the sole remedy for a violation
of the rule, a sanction less than dismissal is also appropriate.
Ward v. Housman, 809 S.W.2d 717, 719-720 (Ky.App. 1991).
Application of CR 41.02 is a matter that is within
discretion of the trial court.
Thompson v. Kentucky Power Co.,
551 S.W.2d 815, 816 (Ky.App. 1977).
Accordingly, we will
reverse the circuit court’s decision only if it abused its
discretion by dismissing the Sabo’s claims under CR 42.01.
"The
test for abuse of discretion is whether the trial judge's
decision was arbitrary, unreasonable, unfair, or unsupported by
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sound legal principles."
The Goodyear Tire & Rubber Co. v.
Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
We are mindful of the admonition contained in Polk v.
Wimsatt, supra, that dismissal pursuant to [] CR 41.02 for
failure to prosecute . . . should be resorted to only in the
most extreme cases.”
Nevertheless, viewing this record in its
entirety we are of the opinion that there is simply no basis for
the contention that the circuit court abused its discretion in
invoking CR 41.02 and dismissing these cases.
Case No. 02-CI-
00413 was filed on April 3, 2002, and Case No. 03-CI-01156 was
filed on April 18, 2003.
During the course of this litigation
plaintiffs went through an extended series of attorneys, and
upon the dismissal of Guarnieri in October 2004, the appellants
were given a reasonable amount of time, 45 days, to procure
substitute counsel.
At the conclusion of this period, the
defendants themselves obliged plaintiffs with an additional 30
days to retain counsel.
Yet still, it was not until two months
following this period of generosity that the defendants moved
for dismissal.
At the hearing, present counsel, at best, gave a
lukewarm assurance that he would enter an appearance.
Given the
history of the cases, the circuit court, understandably, did not
assign credence to Abell’s equivocations.
Moreover, for the
reasons previously discussed, the Circuit Court did not abuse
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its discretion in denying the appellants’ post-dismissal motion
to set aside its April 5, 2005, order.
In summary, we find no error in the circuit court’s
dismissal pursuant to CR 41.02.
For the foregoing reason the judgment of the Fayette
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert L. Abell
Lexington, Kentucky
William A. Hoskins
Jay E. Ingle
Kenneth B. Oakley
Lexington, Kentucky
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