Lisa Zenzen Baker, 1961-2003


Monday, May 18, 2009

Taking sides

Lawyer's conduct raises questions

By David Baker
Posted Monday May 18, 2009

Back in 2006, when I was trying to find an attorney to take over my wrongful death case against Samaritan Hospital I contacted a dozen or so law firms. Most of them declined to even look at the case, while others turned it down after a brief review of the facts.

But one attorney’s conduct seemed a little odd even at the time and now, given what has happened since, it raises serious questions.

That attorney is John Bailey, now a partner at Bailey, Kelleher and Johnson in Albany. At that time Bailey was running a large ad in the Yellow Pages offering medical malpractice representation.

After receiving my detailed description of what had happened to Lisa prior to her death Bailey called me and we spoke for 25 minutes. During this conversation Bailey said he knew an attorney representing one of the defendants in my case. He suggested that he contact this attorney informally and then call me back.

Later that day he called to say that he had contacted the attorney, and that he would be speaking with him again once the attorney had a chance to review his file. Bailey said he would then call me again.

So I waited. Eight days later, when I had heard nothing, I sent a him brief note, asking if he had any news.

Still I received no call. So, after another four days – and 11 days after our conversation – I sent him a memo, the last part of which said:

“Our discussion of my case, on its own, would, I believe, have created an attorney-client relationship, even though you were only evaluating my case. And once you contacted the defense – as you did the day I talked to you, you clearly should have been acting in my interests. Therefore I believe you are obligated to discuss it with me again, no matter what the attorney for the defendants told you, which may or may not be true, and which I may or may not know anything about. With a court-imposed time limit in place, it is obviously to the defendants’ advantage if I am not able to find anyone to take over from my former, incompetent attorney, but in your discussion with them you were representing me, not them.

“With that in mind, I would appreciate it if you would contact me. If you want nothing more to do with this case, that’s your choice, but at least tell me why.”

Two days later, Bailey called. But his tone was very different from our earlier conversation. He sounded defensive, almost hostile, as if he were being forced to talk to me. He said he was not interested in taking my case. But he would not give me a reason, nor would he tell me which of the defense attorneys had had talked to or what had been said.

When I pressed him, he said “Good bye, Mr. Baker” and hung up the phone.

The next day, Stephen Coffey of O’Connell & Aronowitz called – four months after another lawyer at the firm had declined to consider taking the case – and offered to look at it.

An amazing coincidence? Maybe. But I don’t think so.

Coffey didn’t tell me that his firm was already representing the interests of the defendants. With a court-imposed stay about to expire, Coffey and his associate, Brendan Tully, then proceeded to delay their “evaluation” of my case, not obtaining an expert’s review of the medical records after asking me for and getting $1,500; telling me they had written to the court and the defendants when they hadn’t; and trying to dissuade me from opposing a motion to dismiss the lawsuit. Later, after I filed a complaint, Coffey lied to the Committee on Professional Standards in letters that he clearly believed I would never see.

And I probably would not have seen those letters if two things hadn’t happened: First, I wrote a series of letters to a judge on the Appellate Division – the court that rules on allegations of serious misconduct by lawyers – protesting the committee’s failure to act against Coffey or to let me see his response; And second, a committee staff member who had been handling my complaint – and who the record suggests was protecting Coffey – suddenly became ill and died.

The day after the funeral, a committee investigator named Vincent Tepedino called me and said I could see Coffey’s response to my complaint. (This was several months after the committee had closed its file without taking any action and without ever telling me that it had received anything from the firm.) However, Tepedino said, I could only look at the letters; I would not be allow to have copies of them.

Tepedino sat with me in a conference room at the committee’s office as I read the letters. And he become visibly agitated as I pointed out discrepancies in Coffey claims, particularly the statement that “(O’Connell & Aronowitz) did not and we do not represent Samaritan Hospital,” made in a letter dated February 18, 2009 – one day before Coffey’s firm filed a lawsuit against the state Health Department on behalf of various clients – one of them Samaritan Hospital.

Tepedino had evidently not read through the committee’s file on my complaint – in which there should have been a letter from me about the Health Department suit – and he was now becoming painfully aware that allowing me to see Coffey’s letters was an irreversible mistake.

And his bias was obvious: He dismissed my version of what had happened, calling it “a he said/he said situation” that I couldn’t prove. He seemed to be in awe of Coffey, calling him “a great attorney,” while telling me in a dismissive tone that my problem was that because of Lisa’s death I “have blinders on” and could not see the facts.

That was 12 weeks ago. The committee still has not acted. Apparently, even lying to the court is not misconduct – not if you are “ a great attorney” and it’s the committee’s investigators and lawyers who are wearing the blinders.

And almost forgotten in all this is the fact that someone died a horrible and totally preventable death. Samaritan’s own records show that nurses failed to use the hospital’s printed protocol for treating hypoglycemia, and in doing so ignored a doctor’s specific written order to use the protocol.

Later the hospital's insurance company found a physician, Dr. Matthew Leinung of Albany Medical Center Hospital, who stated in an affidavit that failing to follow the protocol and ignoring a doctor's order to use the protocol is not a departure from the standard of care.

The hospital later billed and was paid $74,000 for treating Lisa while she lay in a coma in the three weeks from when she was injured to when she died. If all this had happened five years later Samaritan Hospital probably would not have profited from its negligence. Last year the federal government and several insurance companies ruled that hypoglycemia that starts while a person is in the care of a hospital is one of several “never events.” They won’t pay for treatment that results from these events.